Christensen v. Christiansen

• Decision Date: 13 February 1913
• Citation: 155 S.W. 995
• Parties: CHRISTENSEN et al. v. CHRISTIANSEN.
• Court: Texas Court of Appeals

155 S.W. 995

CHRISTENSEN et al. v. CHRISTIANSEN.

Court of Civil Appeals of Texas. Galveston.

February 13, 1913.

Rehearing Denied April 24, 1913.

Appeal from District Court, Galveston County; Clay S. Brigg, Judge.

Action by Edwin Christiansen against John Christensen and J. Rasmussen. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Stewarts, of Galveston, Geo. T. Burgess, of Dallas, and John E. Quaid, of Galveston, for appellants. J. L. Darrouzet and James B. & Charles J. Stubbs, all of Galveston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee against the appellants, who compose the firm of John Christensen & Co., to recover damages for personal injuries sustained by him and his wife as the result of the alleged negligent overturning of an automobile of appellants in which appellee and his wife were riding as passengers, and which it is alleged was then and there being operated "by appellants and their agents and servants." It is alleged that the automobile car was run at an excessive, dangerous, and unlawful rate of speed, and on the wrong side of the street or roadway, and though it was nighttime, and very dark, there were no lights on the car, and as a result of such negligence the car ran against a bridge or culvert, collided with a buggy, and was overturned, and appellee and his wife were painfully and seriously injured. The damages sought to be recovered are $10,000 for injuries to appellee and $10,000 for injuries to his wife.

The answer contains a general demurrer and numerous special exceptions, the nature of which it is unnecessary to state. Defendants also deny all the allegations of the petition, and specially deny that they were common carriers of passengers, and denied specially that any of the acts complained of were done by defendants or any one authorized to act for them in the capacity of servant or agent. Defendants further set up that the alleged injuries were caused by plaintiff and his wife assuming the risk of riding in the automobile when in the condition described in plaintiff's amended petition, and whatever injuries and damage resulted were caused by plaintiff's negligence in becoming a passenger in the automobile under the condition alleged, "and defendants further alleged that the machine was under the direction of the plaintiff on the night complained of, and the driver of said car was driving according to the directions of the plaintiff, and plaintiff at all times had control over the machine and driver, and the matters complained of were caused by the plaintiff himself and by the driver following the plaintiff's directions and instructions."

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $2,500.

The evidence is sufficient to sustain the conclusion that appellee and his wife were injured as alleged in the petition by the overturning of an automobile owned by appellants, and in which appellee and wife were riding as passengers, that the overturning of the car was due to the negligence of the driver, as alleged in the petition, and appellee was not guilty of contributory negligence. The evidence also sustains the verdict of the jury as to the amount of damages awarded appellee.

Upon the issue of whether the driver of the car at the time he accepted appellee and his wife as passengers, and undertook to transport them to their desired destination, was the agent and servant of appellant and was acting in the scope of his employment, the evidence is as follows: The appellants own and conduct a garage and automobile repair shop in the city of Galveston. At the time of the accident in which appellee and his wife were injured, and for some time prior thereto, appellants had only two cars in use—one a Ford car, numbered 120, and the other a Rambler, numbered 159. The Rambler car was used in rent service and kept on the streets for the purpose of hire and the carriage of any one who would pay for transportation therein. The Ford car was principally used in connection with the repair business, to carry workmen out to repair cars that had broken down on the road, and to bring cars out of repair to the shop to be repaired. This car was also occasionally rented out on special orders to carry passengers. An employé of the appellants named Sutherland was the driver of the Rambler, and was out in that car looking for business on the night of May 10, 1910, which was the date of the accident in which appellee and his wife were injured. Appellants also had in their employ two repair men, one named Gay and the other Ericson. These men were mechanics and worked generally in the repair shop, but both were automobile drivers, and whenever occasion demanded one or the other would take the Ford car and go out to repair cars that had broken down or were out of order, or to bring such cars to the shop for repairs; and, whenever the Ford was sent out on special order to carry passengers, one or the other of these men would drive it. Ericson had frequently been sent out with the said automobile when a call for such service was made at the shop and the other automobile was engaged. He had several times taken parties down the island to the life-saving station. He was employed by the week in the capacity before stated, and his hours of service were from 7 o'clock a. m. to 12 m. and from 1 p. m. to 6 p. m. He had no authority from appellants to take the Ford car out of the shop or to use it for any purpose except as before stated, and was not required or expected to be about the shop after his day's work was over. His fellow workman in the repair shop, Gay, lived in a cottage adjoining the shop, and kept a key to the shop, and had...