Dr. Pepper Bottling Co. v. Rainboldt

• Citation: 40 S.W.2d 827
• Decision Date: 04 June 1931
• Docket Number: No. 1036.,1036.
• Parties: DR. PEPPER BOTTLING CO. et al. v. RAINBOLDT et al.
• Court: Texas Court of Appeals

40 S.W.2d 827

DR. PEPPER BOTTLING CO. et al. v. RAINBOLDT et al.

No. 1036.

Court of Civil Appeals of Texas. Waco.

June 4, 1931.

Rehearing Denied July 9, 1931.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by I. N. Rainboldt, individually and as next friend for his minor child, Wanda Louise Rainboldt, against the Dr. Pepper Bottling Company and others. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

E. C. Gaines, of Austin, and Jos. W. Hale, of Waco, for appellants.

Bryan, Maxwell & Dardnne, of Waco, for appellee.

BARCUS, J.

Appellee, I. N. Rainboldt, for himself individually and as next friend for his six year old girl, instituted this suit against appellants, Dr. Pepper Bottling Company, a corporation, Henry Schroeder and F. A. Graham, to recover damages in the sum of $50,000 for personal injuries suffered by his child, Wanda Louise Rainboldt, and $8,000 doctors, medicine, and hospital bills which appellee, I. N. Rainboldt, alleged he had become obligated to and had in part paid. The cause was tried to a jury, submitted on fifty-four special issues, and resulted in judgment being entered for the child for $30,000 and for I. N. Rainboldt for $7,753.

It appears that Dr. Pepper Bottling Company was engaged in the manufacture of various bottled drinks; that it sold same by wholesale through certain agencies, the general plan being that it fixed the price at which the goods could be sold and to whom credit would be extended, and it employed salesmen or truck drivers who owned their own trucks, allotted to each salesman certain territory and paid a commission of seven and one-half cents when each case of bottled goods was sold and seven and one-half cents when the empty case with bottles was returned. Each truck driver or salesman had the privilege of employing such help or helpers as he might deem wise. Henry Schroeder had been so employed by Dr. Pepper Bottling Company for about seven years; his route covered certain designated towns in McLennan county. He drove his own truck on which the sign "Dr. Pepper Bottling Company" had been painted in large letters at the expense of Dr. Pepper Bottling Company. The company had no interest in the truck, and, under the contract of employment, Schroeder was to furnish the truck and pay for its upkeep and the expenses incident to running same. His entire wage consisted of the fifteen cents per case of goods when sold, and the empty bottles returned. Schroeder employed his son-in-law, F. A. Graham, to assist him in selling and delivering the merchandise, which fact was known to Dr. Pepper Bottling Company. Graham had been working for Schroeder for about a year and a half. Each morning Schroeder and Graham would go to the Dr. Pepper Bottling Company's office and load the truck for the day's sale; what goods were not sold, together with all the empty cases of bottles, would be returned in the afternoon to the Bottling Company, and the cash sales accounted for, and the credit slips delivered to the company for the sales made on a credit.

Schroeder and Graham each testified that on February 4, 1930, which was a cold, rainy day, they made their usual run; that as they entered the city limits of Waco on the return trip, about 3:30 in the afternoon, Schroeder who had been driving the truck, requested Graham to and he did take hold of the wheel, and was driving the truck down North Fifth street, one of the busy thoroughfares of the city, in the center of which was a street car track; that the street was about forty-five feet wide; that they were on the right-hand side; that they each saw the child, Wanda Louise Rainboldt, jump off the sidewalk on the opposite side of the street and start running in a diagonal direction across the street with her raincoat over her head, coming directly toward the truck, and, before same was stopped, it ran over the child's body and caused the injuries of which complaint is made.

In answer to special issues, the jury found that the injuries received were not the result of an unavoidable accident; that Schroeder was an employee of Dr. Pepper Bottling Company; that the truck was in his charge; that Graham drove the truck with the knowledge and consent of Dr. Pepper Bottling Company; that the truck was being operated for the use and benefit of Dr. Pepper Bottling Company; that Dr. Pepper Bottling Company was interested in the arrangement which Schroeder made with Graham. After making the above findings, the jury found that under the contract between the Dr. Pepper Bottling Company and Henry Schroeder, Schroeder represented the will of Dr. Pepper Bottling Company only as to the result of his work, and not as to the means by which it was accomplished. The jury further found that Graham failed to sound the horn as the child approached the truck, which was negligence and was a proximate cause of the injuries; that Graham failed to apply the brakes on the car, which was negligence and was a proximate cause of the injuries; that Graham discovered the perilous position of the child just prior to the collision and realized said perilous position, and that he could have, by the use of ordinary care with the means at his command, avoided the collision, and that he failed to use such care, and that same was a proximate cause of the injuries; that Graham knew that the child was entering a position of imminent danger just prior to the collision, and that he realized said fact in time to have avoided the collision by the use of ordinary care with the means at his command, and that his failure so to do was negligence, which was a proximate cause of the injuries.

Appellant Dr. Pepper Bottling Company by various propositions contends that the trial court should have given a peremptory instruction in its favor, its contention being that Schroeder was an independent contractor and that it was not in any way responsible for the acts of Graham, the driver of the truck, and that there was no evidence of negligence on the part of the driver. All of these propositions depend fundamentally on the question as to whether the evidence shows as a matter of law that Schroeder was an independent contractor, or that there was no negligence on the part of Graham, the driver of the automobile which caused the injuries, or whether Dr. Pepper Bottling Company was in any event responsible for the acts of Graham. All of these propositions are overruled. Without further...