O. C. Whitaker Co. v. Hall
| Decision Date | 27 March 1944 |
| Docket Number | No. 5604.,5604. |
| Citation | 180 S.W.2d 177 |
| Parties | O. C. WHITAKER CO. v. HALL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.
Action by Hartman Hall against O. C. Whitaker Company, a corporation, for injuries sustained in an automobile collision. Judgment for plaintiff on the verdict of the jury, and defendant appealed to the Court of Civil Appeals of the Ninth Supreme Judicial District and the Supreme Court transferred the cause to the Court of Civil Appeals at Amarillo.
Reversed, and judgment rendered for defendant.
Kemper, Hicks & Cramer, of Houston, for appellant.
Orgain, Carroll & Bell and Lamar Cecil, all of Beaumont, for appellee.
This is a common law action for damages for personal injuries instituted by the appellee, Hartman Hall, against the appellant, O. C. Whitaker Company, a corporation. The record reveals that on December 17, 1940, appellee, who lived at Winnie in Chambers County, borrowed the automobile of a friend, in which to go to Beaumont to consult a dentist. After transacting his business at Beaumont and while upon the highway returning home, shortly after noon, the automobile in which he was riding became involved in a collision with a pickup truck coming from the opposite direction, belonging to and being operated in a negligent manner by Roy Grimes. Alfred Jones and T. B. Gary, two employes of appellant, were riding with Grimes in his truck. Appellee was severely injured in the collision and he sought to hold appellant responsible for his injuries by virtue of an alleged arrangement between the employes of appellant and Grimes for Grimes to transport Jones and Gary from where they were working, near Fannett, to Beaumont. Under a contract with the United Gas Company, appellant was engaged in laying a pipe line near Fannett where it had a large number of laborers, divided into several crews. The crew in which Jones and Gary were working, having finished for the day, were ready to be transported back to Beaumont upon trucks belonging to, or engaged by, appellant, and appellee alleged that because of the lack of sufficient facilities on the trucks owned and operated by appellant, an arrangement was made with Grimes by B. W. Melton, one of the laborers, which was acquiesced in by Merrill Tatum, foreman of the crew in which Jones and Gary were working, to transport Jones and Gary in his truck and that Grimes was, therefore, an agent and employe of the appellant.
The case was submitted to a jury upon special issues, in answer to which the jury found that Melton made the arrangement with Grimes; that Merrill Tatum, the foreman, heard the agreement and acquiesced in it; that in making the agreement Melton acted with implied authority from appellant; and that Grimes was transporting the employes to Beaumont in furtherance of the business of appellant. They further found that an emergency existed in reference to transporting the employes; that Grimes was an emergency servant of the appellant in so doing; that Grimes was operating his truck on the left-hand side of the road, which constituted negligence and a proximate cause of the injuries to appellee; that Grimes was driving at a negligent rate of speed and failed to keep a proper lookout, both of which constituted negligence, and that each was a proximate cause of the injuries to appellee; and that the amount which would fairly and reasonably compensate appellee for the injuries sustained by him was $45,750.
Based upon the verdict of the jury, the court rendered judgment in favor of appellee for the amount indicated and, appellant's motion for a new trial being overruled, it perfected an appeal to the Court of Civil Appeals of the Ninth Supreme Judicial District, at Beaumont. Upon an order equalizing the dockets of the Courts of Civil Appeals, the Supreme Court has transferred the case to this court and it is now before us for review.
At the close of the testimony, appellant presented and urged a motion for an instructed verdict, which was overruled. After the verdict was returned, it presented and urged a motion for a judgment non obstante veredicto, which was likewise overruled, and the first two assignments of error urged by appellant pertain to the action of the court in overruling these motions. Two questions are presented under them which we think must control our disposition of the case. They are, first, that Grimes was not the agent or employe of appellant at the time of the collision because, even admitting he had been requested by Melton in the presence and hearing of Merrill Tatum to transport Jones and Gary to Beaumont and that Merrill Tatum heard and acquiesced in the arrangement, neither Melton nor Tatum had authority from appellant, either express or implied, to make or acquiesce in such employment and bind appellant thereby; secondly, that, even if they had had such authority, no emergency existed which would authorize Melton or Merrill Tatum to employ Grimes to transport Jones and Gary to Beaumont under the rule of emergency employes.
The uncontradicted testimony shows that Henry Tatum was the superintendent of the entire construction job and had been employed in that capacity by appellant for a number of years. In constructing the pipe line, it was necessary to have several different crews of laborers, one to dig the ditch, another to lay the pipe line, and a third crew, known as the "priming" crew, working with a priming machine by which they applied to the pipe a primer coat consisting of a substance necessary to be applied before the final coat of an asphalt or tar-like substance was applied. It was necessary that the primer coat have from one to three hours in which to dry before the next crew worked upon it, and that crew then took charge of it and with another machine, called the "doping" machine, they applied the asphalt substance and wrapped the pipe with heavy paper. Following this last-mentioned crew was another crew called the "Holiday gang," consisting of five men who worked with a machine called a "Holiday Detector," by which they discovered and filled spots or spaces on the pipe that had been missed or overlooked by the "doping gang." Merrill Tatum, a son of Henry Tatum, was an experienced laborer in the work of laying pipe lines and was employed on this job, as well as others at other times, by his father as foreman of the "doping" crew, which included the "Holiday gang," his duties being to oversee the work being performed by his crew and he was responsible for the efficiency of the work his crew performed. He had authority to employ and discharge laborers who worked in his crew, one of the members of which was B. W. Melton. The evidence shows that Melton had had considerable experience in laying pipe lines, both for appellant and other like concerns, and was especially efficient in the operation of a Holiday detector. He usually operated the machine and instructed other members of that crew as to how the work should be performed when it appeared they were not familiar with it. He was known as a "lead-off" man, who usually directed the remainder of the crew in the absence of the foreman. Appellant maintained a warehouse and headquarters in Beaumont where all of its laborers gathered each morning and from which they were conveyed on trucks to the place where the work was being done. Their wages did not begin until they reached the place where the pipe line was being constructed but they were paid for the time consumed in returning to the warehouse. There was evidence to the effect that the "doping" machine broke down about noon, December 17, 1940, and it became necessary to place it upon the truck being used by the "doping gang," and return it to the warehouse for repairs. This made it necessary for the entire crew, including the "Holiday gang," to cease work for the remainder of the day because the "Holiday gang" could not proceed ahead of the "doping" machine, and all of the "doping" crew, including the five men in the "Holiday gang," were instructed to return to the warehouse in Beaumont. Roy Grimes had been employed by appellant up to December 12, 1940, at which time he quit work and was finally paid off. He intended shortly to go to his home in Henrietta to spend the holidays and, not being engaged in any sort of work, he decided to visit some of his friends who were working on the pipe line. He drove out there in his pickup truck on the morning of December seventeenth, where he remained until the crew of laborers ceased work. According to Jones' and Gary's testimony, there was not enough room on the truck for them to ride back to Beaumont and Melton arranged with Grimes to return them in his pickup truck. It was undisputed that Henry Tatum, the superintendent, did not hear the conversation between Melton and Grimes, but it was shown that Merrill Tatum was there and could have heard it. Gary and Jones boarded Grimes' pickup truck and they left the scene of the work with Grimes ahead of the company truck. It was on their trip to Beaumont that the collision occurred.
Upon the theory that Grimes was the agent or employe of appellant by virtue of the agreement between him and Melton, heard and acquiesced in by Merrill Tatum, the court submitted the case to the jury upon the question of Grimes' negligence in causing the collision, and appellant's first contention is that the court erred in refusing to give to the jury a peremptory instruction because, under the facts proved, Grimes was not the agent or employe of appellant and appellant was, therefore, in nowise responsible for his acts.
It was undisputed that Henry Tatum was somewhere on the ground and was available at the time the laborers ceased work and started to Beaumont. According to the uncontroverted testimony, he was the only one who had ever employed trucks for transportation of the crews. His testimony was undisputed that he had...
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