Casey v. Sanborn's Inc. of Tex., 15796

• Decision Date: 09 March 1972
• Docket Number: No. 15796,15796
• Parties: Robert CASEY et ux., Appellants, v. SANBORN'S INC. OF TEXAS et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 234

478 S.W.2d 234

53 A.L.R.3d 1303

Robert CASEY et ux., Appellants, v. SANBORN'S INC. OF TEXAS et al., Appellees.

No. 15796.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

March 9, 1972.

Rehearing Denied April 6, 1972.

Brown, Kronzer, Abraham, Watkins & Steely, Dale Friend, Houston, for appellants.

Wilson & Guest, William M. Coats, Houston, for appellees.

PEDEN, Justice.

Plaintiffs sued travel agents for damages for personal injuries received on a trip in Mexico. Plaintiffs appeal from the granting of a motion for judgment entered at close of their case in chief in a non-jury trial.

The points of error filed by appellants, Mr. and Mrs. Casey, are that the trial court erred in granting judgment for the defendants because there was evidence of probative value raising issues of fact for determination by the court of 1) a breach of contract, 2) a breach of an implied contractual duty to furnish safe passage, 3) liability of Sanborn's as agent for an undisclosed principal, 4) negligence by an employee of Sanborn's, the agent for an undisclosed principal, and 5) negligence as to Sanborn's, principal for its agents in Mexico.

Neither findings of fact nor conclusions of law are found in the record, and it does not appear that they were requested. We do not agree with the appellees' contention that in the absence of such request a presumption arises that all issuable facts were found in support of the judgment.

In a non-jury trial, when the plaintiff rests the defendant may move for judgment, and the court applies to such motion the same rules which would determine the propriety of instructing a jury to return a verdict. 4 McDonald, Texas Civil Practice 5, § 16.04 (rev. ed. 1971); Lorino v. Crawford Packing Co., 169 S.W.2d 235 (Tex.Civ.App.1943, aff. 142 Tex. 51, 175 S.W.2d 410). Under such test the course must presume to be true the evidence of the plaintiff, who is entitled to the most favorable construction that such evidence will properly bear and to the benefit of all reasonable inferences arising therefrom. Rhinetubes v. Lloyd, 335 S .W.2d 269 (Tex.Civ.App.1960, writ ref. n.r.e.); Evans v. Houston Printing Corp., 217 S.W.2d 85 (Tex.Civ.App.1948, writ ref. n.r.e.); Coca Cola Bottling Co. of Ft. Worth v. Burgess, 195 S.W.2d 379 (Tex.Civ.App.1946, writ ref. n.r.e.); Burkhardt v. Harris, 200 S.W.2d 445 (Tex.Civ.App.1947, no writ).

The petition on which the Caseys went to trial alleged that they sustained injuries while taking a tour in Mexico arranged for them by Sanborn's, Inc. of Texas and Mr. Dan Sanborn, d.b.a. Sanborn's International Travel Service. That defendants, acting through their agents and employees, contracted with the plaintiffs to furnish them competent guides and drivers to steer them in Mexico; that plaintiffs paid their money to defendants and took the trip to Mexico, where the guide furnished to take them from Mexico City to Acapulco engaged in very hazardous driving; his negligent driving proximately caused a wreck, injuring both plaintiffs. He was caused to be selected and hired by the defendants, and the circumstances are such that they are responsible for his negligence. Further, that defendants breached their contract with the plaintiffs, causing plaintiffs' injuries and damages.

The defendants answered by general denial. The record does not show that exceptions were levelled to the plaintiffs' petition.

Mr. Casey testified that he went to Sanborn's office in Houston and contracted with them to provide a tour to Mexico for his wife and himself. He paid Sanborn's for the pre-arranged tour, and he and his wife left Houston on December 7. The itinerary introduced in evidence as Plaintiffs' Exhibit No. 1 was furnished by Sanborn's. On the cover there is stated in large letters: 'SANBORN'S MEXICO TRAVEL SERVICE--OFFICES. ITINERARY SPECIALLY PREPARED FOR M/M R. CASEY' It contains six printed pages with spaces for dates, names of airlines and hotels, etc. to be typed in. The first interior page shows that the Caseys were to arrive in Mexico City on December 7, 1968 by Braniff Flight Number 51, then states: 'Welcome to Mexico City--

'Upon your arrival to the airport of Mexico City, you will immediately go through immigration and customs employees of the Airline Company will indicate the way to pass through customs, and will give you all the help you may need. Immediately after, our transferman will be waiting for you at the door, calling your names, and will give you all the necessary help with your baggage. He will transport you be car to the Hotel . . . CRISTOBAL COLON . . . where we have confirmed your reservations, and will give you all the information you may request, delivering your hotel coupons,

IMPORTANT: Up to date it has never happened, but if for any reason our transfer-man is not waiting for you at the place of arrival, please address yourselves to the Airline Company and ask them to locate by microphone the representative of ROMFEL TRAVEL SERVICE, or immediately phone our general offices.'

Page 6 of the itinerary provides:

'DATE DECEMBER 11, 1968 CUERNAVACA, TAXCO AND ACAPULCO. Our representative will call for you at your hotel at 10:00 A.M. to drive you from Mexico City's high plateau to the sub-tropical and peaceful city of Cuernavaca . . .'

It provided that after the Caseys visited that city they were to be taken to Taxco. '. . . On the second day, after breakfast, with our guide you will continue the trip by road . . .'

The only mention of Romfel Travel Service is the reference we have noticed on the first interior page of the itinerary. On the back of the outer cover of the itinerary is stated: 'Sanborn's Travel Service Offices Mexican Wholesale Tour Operators.' The office addresses and telephone numbers of their executive and branch offices in Mexico City are also listed.

Mr. Casey further testified that they were met at the airport in Mexico City by a man who introduced himself as a representative of Sanborn's, who took them to the hotel in his car. Another Sanborn's representative took them to the bullfights the next day, and a third one took them on a tour to the pyramids the next day. The next day, a Wednesday, they were met in the lobby by a man who said he was from Sanborn's. He drove his car. The portion dated December 11, 1968, as shown on page 6 of the itinerary in evidence, was the part they were on when the accident occurred. This driver was impolite in that he wouldn't answer questions. He spoke English and Mrs. Casey speaks Spanish, so it wasn't a language problem. Casey has driven for 14 years. The driver drove too fast. The car looked like a 1964 Chevrolet. When they left Taxco to go to Acapulco, they asked him to slow down, but he didn't. The road was in the mountains and had many curves. Casey was drowsy, but knew the car was going close to 65 or 70 miles per hour. The driver lost control and hit the side of the mountain. Mr. Casey was knocked unconscious . He described his injuries and those of his wife. They were taken to a nearby hospital by some other travelers. They called Sanborn's and were told to take a taxi to Acapulco, fifty miles away, and that Sanborn's would pay for the taxi.

On cross-examination Mr. Casey testified that when he bought the tour from Sanborn's he left all the arrangements to them; he didn't think they were going to hire someone off the street with a car, which is about what they did. He had understood that all the drivers were supposed to be employed by Sanborn's, but he found that apparently they were hired on the spot by Sanborn's as needed. None of the cars had a...