Browne v. Hanagriff

• Decision Date: 21 March 1925
• Docket Number: (No. 8665.)
• Citation: 270 S.W. 890
• Parties: BROWNE et al. v. HANAGRIFF.
• Court: Texas Court of Appeals

270 S.W. 890

BROWNE et al. v. HANAGRIFF.

(No. 8665.)

Court of Civil Appeals of Texas. Galveston.

March 21, 1925.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by Harry H. Hanagriff, for himself and as next friend of his minor daughter, Hilmer Hanagriff, against John T. Browne and another, doing business under the name of the Browne Commission Company. Judgment for plaintiff, and defendants appeal. Affirmed.

King & Battaile, of Houston, for appellants.

R. H. Holland, B. L. Palmer, and Walter Baird, all of Houston, for appellee.

LANE, J.

This suit was brought by appellee Harry H. Hanagriff for himself and as next friend for his minor daughter, Hilmer Hanagriff, against John T. Browne and John M. Browne, doing business under the name of Browne Commission Company, to recover damages alleged to have been suffered by himself and his minor daughter, by reason of injuries to his said daughter by being struck in the city of Houston by an automobile owned by defendants, which was, at the time of the injury, being operated by a servant of defendant, who it is alleged was, at such time, acting within the scope of his employment and in furtherance of his master's business.

The defendants answered by general denial and by a plea of contributory negligence.

The cause was submitted to a jury upon special issues, in answer to which the jury found:

(1) That the driver of the truck, causing the injury, did not, at the time and place of such injury, keep a reasonable lookout in the direction in which he was driving to prevent a collision with pedestrians in his path, and that his failure so to do was negligence and the proximate cause of the injury sustained by Hilmer Hanagriff.

(2) That Hilmer Hanagriff did not discover the approach of the truck which struck her in time, by the use of ordinary care, to have avoided being hit by same.

(3) That at the time Hilmer Hanagriff was struck the truck which struck her was being operated by an employee of the defendants, who at such time was acting within the scope of his employment; that is, that the employee was engaged in the furtherance of his master's business at such time.

(4) That the damage suffered by Hilmer by reason of her injury was $1,250, and that the damage suffered by her father, Harry Hanagriff, was $1,250.

Upon the answers of the jury, judgment was rendered in favor of Hilmer Hanagriff for $1,250 and in favor of Harry Hanagriff, as next friend of Hilmer Hanagriff, for $1,250. In a few days after the rendition of this judgment, plaintiff Harry Hanagriff filed a remittitur, whereby he remitted the sum of $450 from the judgment for $1,250 theretofore rendered in his favor, as next friend of Hilmer Hanagriff. Upon the filing of such remittitur, the court caused the same to be entered in the minutes of the court, and, in said order, it is recited that the judgment heretofore rendered in favor of Harry Hanagriff for $1,250 is reduced by $450, and that the judgment in his favor is to thereafter read that Harry Hanagriff do have and recover of and from Browne Commission Company and John T. Browne and John M. Browne, individually, defendants, the sum of $800 and all costs.

From the judgment as a whole as finally entered, defendants have appealed.

The only question presented for our determination is, Was there sufficient evidence to support the findings of the jury that the driver of the truck was acting within the scope of his employment at the time of the accident?

That the truck in question was the property of appellants and had been driven by the employee, who was driving it at the time of the accident, for about one year prior thereto for appellants is shown by the undisputed evidence. It is also shown that on the morning of the accident said driver had been informed that some automobile casings which had been stolen from appellants, his employers, were out on Hill street; that he and his informant went out in the truck to Hill street, the place where he had been informed the casings were located, and, on failing to find the car, which they supposed contained the casings, they drove over to Oden avenue, which is between Hill and Clark streets, and at that point the driver of the truck said to his companion that he believed, while he was out there, he would go out and get his breakfast; that his companion then told him that they had better turn around, because Mr. Browne might be at the office and that there were "No orders up," whereupon the driver said that he would drive down to Schwartz street and turn around; that he went down to Schwartz street, and turned around, and as he was...