Butler v. Spratling

• Decision Date: 09 March 1951
• Docket Number: No. 15216,15216
• Citation: 237 S.W.2d 793
• Parties: BUTLER v. SPRATLING et al.
• Court: Texas Court of Appeals

Page 793

237 S.W.2d 793

BUTLER v.SPRATLING et al.

No. 15216.

Court of Civil Appeals of Texas, Fort Worth.

March 9, 1951.

Rehearing Denied March 30, 1951.

Chaney, Davenport & Irwin, of Dallas, for appellant.

G. R. Lipscomb and Claude Spratling, both of Fort Worth, for appellee.

McDONALD, Chief Justice.

Appellees brought this suit for damages done to a house when a truck owned by appellant, and driven by Henry L. Jones left the highway and crashed into the house.The jury found: (1) Jones' driver's license had expired prior to the time of the collision; (2) such fact was not known to the agent of appellant who employed Jones to drive the truck; (3)appellant's agent in charge at the time was negligent in entrusting the truck to the defendant Jones without ascertaining whether his driver's license had expired; (4) Jones operated the truck in a negligent manner; (5) such negligence was the proximate cause of the collision between the truck and the house.The remaining issues pertained to the amount of damages.Judgment was rendered for appellees against appellant Butler and the driver Jones, jointly and severally, for the damages found by the jury.Butler alone has appealed, presenting six points of error.

We are first met with the contention by appellees that the appeal should be dismissed.Butler filed a supersedeas bond executed by Pan American Casualty Company as surety.Appellees filed a motion in this court to dismiss the appeal, based on the theory that Pan American Casualty Company was primarily liable for payment of the judgment because it had issued a policy of liability insurance protecting Butler against claims of the kind asserted by appellees in this suit, and that, in effect, the supersedeas bond was executed only by persons primarily liable for payment of the judgment, with the alleged result that the bond was not executed by a surety as well as by the principal obligor.We overruled the motion to dismiss the appeal, another supersedeas bond was filed in this court, executed by a different surety, and we adhere to our original view that the bond filed with the clerk of the trial court was sufficient compliance with the applicable rules of procedure to confer jurisdiction of the appeal on this court.

Jones was hired to drive the truck on Monday, and the collision with the house occurred on Wednesday of the same week.On the latter day Jones was instructed to drive the truck to his house at the end of the day, and to bring it to the place of employment the next morning.Without permission from his employer, and contrary to the instructions which had been given him, he drove the truck to another part of town that evening, on a personal mission having nothing to do with his employer's business, and ran into appellee's house.

Although Jones was appellee's employee, hired to drive the truck, liability is not sought to be imposed upon appellant by reason of the master and servant relationship, or, to put it another way, under the doctrine of respondeat superior, because Jones was not in the scope of his employment when the damage was done.Appellees' theory of recovery is founded on the charge that appellant entrusted the truck to an unlicensed driver, and hence became liable for the demages proximately caused by the driver's negligence.Appellant contends that liability can be imposed on him, because of his negligence in entrusting the truck to an unlicensed driver, only if appellant's negligence in such respect was a proximate cause of the damage suffered by appellees.Appellant argues that in any event it was reversible error for the trial court to refuse to submit the issue of proximate cause in such respect to the jury, and further says that the evidence shows, as a matter of law, that appellant's negligence in entrusting the truck to an unlicensed driver was not a proximate cause of the collision.The claim is that since Jones was not driving the truck with appellant's permission at the time of the collision, it cannot be said that the entrustment of the truck to him for use in the employer's business was a proximate cause of the collision with appellees' house.The debate between the parties revolves largely around the opinion of the Supreme Court in Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 588, and the different interpretations placed by the parties on statements appearing in that opinion.

It is settled that the owner who entrusts his automobile to a person known to him to be an incompetent or reckless driver is guilty of negligence.To quote from the Pirie-Slaughter opinion, 'If such incompetent or reckless driver, through his negligent operation of the automobile, causes damage to a third person, the owner of the automobile is liable; the negligence of the driver does not break the chain of causation.'The opinion in the Pirie-Slaughter case appears to treat the unlicensed driver as being in somewhat the same category as the incompetent driver, and to hold that the owner who entrusts his automobile to an unlicensed driver is in somewhat the same position as the owner who entrusts his automobile to an incompetent or reckless driver.The rules as to liability of the owners in the two situations are not identical, but they are in some respects analogous.

In the case of the unlicensed driver, the Supreme Court declares that the car owner is guilty of negligence per se if he knows that the driver has no license.In the case before us the jury found, on sufficient evidence, that the owner did not know that the driver's license had expired, so negligence per se is not in the case.Appellees argue that negligence per se is in the case because Section 37 of Article 6687b, Vernon's Ann.Civ.St., provides that it is unlawful to employ a chauffeur or commercial operator who does not have a license.We do not think that Section 37 is applicable, because Jones was not...