Coleman v. Donaho

• Decision Date: 23 November 1977
• Docket Number: No. 1519,1519
• Citation: 559 S.W.2d 860
• Parties: Herman Benjamin COLEMAN et al., Appellants, v. Robert Michael DONAHO et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 860

559 S.W.2d 860

Herman Benjamin COLEMAN et al., Appellants,

v. Robert Michael DONAHO et al., Appellees.

No. 1519.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Nov. 23, 1977.

Rehearing Denied Dec. 21, 1977.

Paul W. Persons, Houston, for appellants.

John W. Turner, Miller, Gann & Perdue, David H. Burrow, Helm, Pletcher, Hogan & Burrow, Woody R. Denson, Houston, for appellees.

J. CURTISS BROWN, Chief Justice.

This is a suit for personal injuries sustained by the appellees in an automobile accident. The primary issue on appeal is whether, at the time of the accident, one of the appellants was acting in the course and scope of his employment with the other appellant.

The appellant Herman Benjamin Coleman (Coleman) was employed by the appellant Nottingham Homes, Inc. (Nottingham) during September 1972 as a job superintendent. Coleman worked at a Nottingham housing subdivision on September 2, 1972 until approximately 8:30 P.M. One hour later, as he was driving home from work, Coleman was involved in a head-on collision on Farm Road 149 with a car owned and operated by Roger Granger (Granger). Roger Granger, Linda Granger, Robert Michael Donaho (Donaho), Judy Lynn Donaho, and Michael Eugene Donaho, all occupants of the Granger car and appellees herein, sustained severe personal injuries in the accident. Linda Granger died of her injuries fifteen days later.

The appellees sued Coleman and Nottingham, alleging that the appellees' personal injuries and the wrongful death of Linda Granger were proximately caused by Coleman's negligence. Trial was held on March 9, 1976. In response to special issues, the jury found that Coleman was engaged in the service of Nottingham and in furtherance of the latter's business at the time of the accident. The jury also found that Coleman was negligent in failing to keep his vehicle on the right side of the road, in failing to keep a proper lookout, in failing to control his speed, and in operating his vehicle while under the influence of alcohol. Each of those negligent acts or omissions was found to be a proximate cause of the accident. The jury also found that the appellee Granger was not guilty of contributory negligence. The district court rendered judgment in accordance with the verdict.

The appellants assert in their first point of error that the trial court erred in failing to grant an instructed verdict or judgment non obstante veredicto on the issue whether Coleman was acting in the course and scope of his employment with Nottingham at the time of the accident. The appellant Nottingham attacks the legal and factual sufficiency of the evidence to support the jury's affirmative finding to that special issue. At the time of the accident, Coleman was driving a pickup truck furnished by the president of Nottingham. Coleman was authorized to drive the truck only when he was engaged in Nottingham's business. The appellant Nottingham does not contend that Coleman's use of the truck at the time of the accident was unauthorized. Coleman was responsible, additionally, for the safekeeping and distribution of Nottingham's weekly payroll checks to subcontractors. On the day before the accident, Coleman received Nottingham's payroll checks and distributed several of those checks. On the evening of the accident, Coleman was taking the remainder of the checks home with him for safekeeping for the rest of the weekend. All of the parties agree that in doing so Coleman was rendering a service to Nottingham. The totality of the circumstances in this case convinces us, therefore, that there was a fact issue as to whether Coleman was acting in the course and scope of his employment with Nottingham when the accident occurred. See American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957); Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 178 S.W.2d 514 (1944).

The appellant Nottingham contends in support of its first point, alternatively, that Coleman deviated from the course and scope of his employment by drinking on the job in violation of company rules. We reject this argument. Coleman's consumption of alcohol does not alter the fact that, at the time of the accident, Coleman was driving a company truck and performing a service for Nottingham. G. & H. Equipment Co., Inc. v. Alexander, 533 S.W.2d 872 (Tex.Civ.App.-Fort Worth 1976, no writ); Sears, Roebuck & Company v. Jones, 303 S.W.2d 432 (Tex.Civ.App.-Waco 1957, writ ref'd n. r. e.).

In their second, third, seventh and eighth points of error, the appellants complain of the admission of certain evidence by the trial court. The appellants contend that a highway patrolman should not have been allowed to testify as to self-serving statements made to him by the appellees Granger and...