Burt v. Lochausen

• Citation: 151 Tex. 289,249 S.W.2d 194
• Decision Date: 21 May 1952
• Docket Number: No. A-3443,A-3443
• Parties: BURT v. LOCHAUSEN et al.
• Court: Supreme Court of Texas

Page 194

249 S.W.2d 194

151 Tex. 289

BURT v. LOCHAUSEN et al.

No. A-3443.

Supreme Court of Texas.

May 21, 1952.

Rehearing Denied June 18, 1952.

Andress, Lipscomb & Peticolas, El Paso, for petitioner.

Jones, Hardie, Grambling & Howell, Burges, Scott, Rasberry & Hulse and Kemp, Smith, Brown, Goggin & White, all of El Paso, for respondents.

GRIFFIN, Justice.

The pertinent facts necessary to an understanding of this cause may be stated as follows:

Lochausen, who was an insurance agent and associate manager of The Life Insurance Company of Virginia, prior to March 6, 1920, had taken the application of Richard Burt for $25,000 insurance in the Insurance Company. Burt lived about fourteen miles west of El Paso on his farm, and came in on the morning of March 6, 1950, to be examined for the insurance by the Company medical examiner. He first went to Lochausen's office and met Lochausen at the elevator. They went together to the doctor's office and Burt was examined, which examination was concluded about noontime. Lochausen and Burt went immediately to Juarez, Mexico, for lunch and refreshment. Burt, Lochausen and a friend, who joined them at the Central Cafe in Juarez, rolled dice to see who should pay for the drinks and meal, and Lochausen was 'stuck' and paid for the lunch. Burt had come to the City in his own car and his wife in hers. Mrs. Burt left her car at a motor company to be serviced and, by prior arrangement, was to meet her husband at the Popular Dry Goods Company in El Paso, Texas at 1 P. M. and return home with him in his car. While in Juarez, Burt recalled his appointment with his wife and borrowed Lochausen's car and came to El Paso and met Mrs. Burt and told her he had a way to get home and she could go on in his car. Burt returned to Juarez.

At the conclusion of the Juarez lunch, and at about 2:30 to 3:00 P.M., Lochausen and Burt made a trip down the El Paso Valley and later returned to Juarez about 4:00 .p.M. where they remained until about 6:45 P.M. when they left for the Burt farm home in Lochausen's car. Lochausen testified Burt had asked him, during the lunch time in Juarez before Burt came to El Paso to meet Mrs. Burt, to take him home later. There is testimony in the record that Lochausen had said he was to meet Burt the next morning, March 7th, to collect the first premium, and also testimony from Lochausen that he was through with the matter of insurance after the examination until the policy was returned by the Company for delivery, at which time the premium would be due under the then status of the matter, and at which time he would collect it. We regard it as immaterial whether the premium was to be collected on the morning of the 7th or on delivery of the policy.

The unfortunate and tragic accident in which Burt lost his life occurred about 7:00 P.M., March 6th, on Highway 80-A just west of the city limits. At the point where the accident occurred, and at all points in the immediate vicinity, the highway is a four-lane highway with a double stripe and buttons marking the center. We will recite such testimony as may be needed in connection with our discussion of the legal points discussed in this opinion.

Petitioner filed suit in one of the district courts in El Paso County, Texas, against respondents, Lochausen and the Insurance Company for damages suffered by virtue of the death of her husband in the unfortunate accident, alleging Lochausen to be the owner and driver of the car when the accident occurred. She further alleged that the injuries and death of her husband were caused by the gross negligence, heedless and reckless disregard of the rights and safety of others on the part of Lochausen (joining the Insurance Commpany as a party defendant on the theory that Lochausen was the agent of the Insurance Company and engaged in the course of his agency and employment at the time of the accident) as follows: (a) that Lochausen drove and operated his car at a great, excessive and reckless rate of speed; (b) at a speed in excess of 60 miles per hour contrary to law; (c) that he overtook and passsed a truck proceeding in the same direction on a left hand curve; (d) that he overtook and passed a truck proceeding in the same direction and drove to the left of the center of the highway at a time when the left side of the center was not free from traffic, etc., contrary to law; (e) that he so operated his car as to fail to keep and maintain same under a proper degree of control and management in driving said car off of said highway; (f) that he failed to keep the proper lookout for other persons and vehicles upon said curving highway. In addition, petitioner pleaded all such claimed grounds of gross negligence as ordinary negligence.

At the close of the testimony and after all parties had rested the respondents, Lochausen and Insurance Company, each filed separate motions for an instructed verdict upon the grounds sustained by the trial court in granting these respondents' motion for a judgment non obstante verdicto.

The trial court, in special issues, submitted all the alleged grounds of negligence save (d) to the jury, upon each of which the jury returned favorable answers for plaintiff and in response to appropriate issues found each such claimed acts to be ordinary negligence and also gross negligence and a proximate cause of the accident and injuries. Each of the defendants timely filed motions to disregard the verdict and render judgment in their favor notwithstanding the verdict. The court heard the motions and arguments thereon and sustained them and rendered judgment that plaintiff take nothing. The motions were predicated primarilty on the grounds that the evidence established, as a matter of law, that Burt was the guest of Lochausen at the time of the accident and that Lochausen was not guilty of gross negligence. Plaintiff's points on the appeal, save one, challenge these grounds and the action of the court in rendering the judgment in response to the motions.

Petitioner appealed to the Court of Civil Appeals at El Paso, Texas, which court, by its majority opinion, discussed only the question of the correctness of the 'non obstance' judgment as based upon (a) that Burt, as a matter of law, was a 'guest' of defendant Lochausen at the time of the accident, and not a 'passenger' within the meaning of our 'Guest Statute' Art. 6701b, V.A.C.S.; and (b) that Lochausen was, as a matter of law, not guilty of gross negligence on the occasion in question. The Court of Civil Appeals affirmed the action of the trial court as to both of the above particulars, and affirmed the judgment rendered. Justice McGill, in his dissenting opinion, agreed that Burt was Lochausen's guest at the time of the accident, but he took the position there was evidence to support the jury's verdict that Lochausen was guilty of gross negligence. He agreed with the majoirty opinion that the Insurance Company was not liable, and he would have affirmed the trial court's judgment in favor of the Insurance Company. 244 S.W.2d 915.

We agree with both courts below that there is no liability on the part of The Life Insurance Company of Virginia (1) because, in our opinion, the case of American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409 is controlling so as to relieve the Insurance Company of liability. The written contract of employment of the agent in the Denke case is set out in that opinion.

The contract of Lochausen with The Life Insurance Company of Virginia, as shown by an exhibit to the Statement of Facts, provides, among other things, that Lochausen is appointed as agent in the El Paso territory 'for the purpose of procuring applications for insurance in the said The Life Insurance Company of Virginia, and for the purpose of collecting and paying over premiums to the Company on such insurance when effected and of performing such other duties in connection therewith as may be required by said Company,' and '3. The Agent shall be governed in the business of his Agency by the written and printed instructions and rules which he may from time to time receive from the Company * * *'. The contract appointing Lochausen as associate manager of the El Paso territory was signed by Lochausen and Malcolm H. Webb, Jr., as manager, and appoints Lochausen as 'his agent (to be known as Associate Manager) for the purpose of supervising and training agents appointed in El Paso, Texas, and Territory in the State of Texas & Territory, the collection of premiums and carrying out of such other duties, responsibilities and instructions as may be placed upon the Party of the Second Part (Lochausen) by the Party of the First Part (Webb).' The Insurance Company consented to the appointment by appropriate wording at the bottom of the contract and the signature of an assistant vice-president. There is no evidence that the Insurance Company exercised any control over Lochausen except as to 'the contractual features of his employment, and to the attainment of ultimate results, and not to 'physical details as to the manner of performance' of his movements while soliciting collecting, attending meetings, etc.', as is said by this court in the Denke case 95 S.W.2d loc. cit., at page 373. In the Denke case, Saunders ran his car into Denke and Shepherd while he (Saunders) was driving across the City of Galveston for the express purpose of soliciting insurance. In that case it is said 'the decisive question is, had the defendant (Insurance Company) the right to control in the given particular, the conduct of the person doing the wrong', 95 S.W.2d loc. cit., at page 373. Also, 'In our opinion, while there are numerous provisions in the contract which indicate control over Saunders, yet we think the control evidenced by such provisions related primarily to the contractual features of his employment, and to the attainment of ultimate results, and not to 'physical details as to the manner of performance' of his...