Dr. Pepper Bottling Co. v. Rainboldt

• Decision Date: 05 October 1933
• Docket Number: No. 1397.,1397.
• Citation: 66 S.W.2d 496
• Parties: DR. PEPPER BOTTLING CO. et al. v. RAINBOLDT.
• Court: Texas Court of Appeals

66 S.W.2d 496

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

No. 1397.

Court of Civil Appeals of Texas. Waco.

October 5, 1933.

Rehearing Denied December 14, 1933.

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.

Affirmed.

Jos. W. Hale and George Clark, both of Waco, E. C. Gaines, of Austin, and S. M. Leftwich, of Dallas, for appellants.

Bryan & Maxwell, of Waco, for appellee.

STANFORD, Justice.

Appellee, I. N. Rainboldt, for himself individually and as next friend for his 6 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 $40,000 for personal injuries suffered by his child, Wanda Louise Rainboldt, and $8,700 for doctor, medicine, and hospital bills which appellee, I. N. Rainboldt, alleged he had become obligated to, and had in part paid. For a full statement of the case, see Dr. Pepper Bottling Company et al. v. Rainboldt et al. (Tex. Civ. App.) 40 S.W.(2d) 827.

Under their first proposition, appellants contended that the court should have granted their request for a peremptory instruction upon the ground that the evidence was wholly insufficient to authorize a submission of the case.

The record shows that on the issue of negligence the trial court submitted special issues Nos. 8 to 13, in substance, as follows:

"Do you find from a preponderance of the evidence, if any, (a) that the failure of the driver of the truck to sound his horn as Wanda Louise Rainboldt was approaching the place of the collision from the opposite side of the street, was negligence, as that term has been defined to you herein?

"(b) that such negligence, if any, was a proximate cause of the injuries and damages, if any, to Wanda Louise Rainboldt?

"(c) that the driver of the truck in question, as Wanda Louise Rainboldt entered the street from the opposite side thereof, failed to apply the brakes on his truck?

"(d) that such failure to apply the brakes by said driver, if he did so fail, was negligence?

"(e) that such negligence, if any, was a proximate cause of the injuries and damages, if any, to Wanda Louise Rainboldt?" To all of which the jury answered: "Yes."

Plaintiffs charged negligence as against all three defendants, jointly and severally, on the grounds that, as they were driving south on North Fifth street in the city of Waco in their truck, they saw Wanda Louise Rainboldt as she left the sidewalk, approached the street, and started across the street on the opposite side from that on which they were driving; that defendants were negligent, in that the driver of the truck failed to sound his horn to warn Wanda Louise Rainboldt, and failed to apply his brakes as he approached the place where Wanda Louise Rainboldt was crossing the street; that these acts were negligence, and as a proximate result thereof they ran over Wanda Louise Rainboldt and caused the injuries to her; that Wanda Louise Rainboldt was a child about 6 years of age.

In support of these allegations, the following evidence was introduced:

"Henry Schroeder, one of the defendants, by deposition, testified that as they drove down North 5th street he saw Wanda Louise Rainboldt; that when he first saw her she was on the far side of the street and on the sidewalk with two other little girls; that he further saw her when she jumped off the curb and started across the street; that from the time they saw her until the collision, they never did sound the horn, and that they did not holler as she left the curb, nor till some time after she left the curb. He further says that he was looking towards her from the time she was on the sidewalk until she stepped off the curb.

"Graham, the driver of the car, testified that he saw the child as she was leaving the sidewalk on the opposite side of the street. He later said that she was leaving the curb when he first saw her and that she traveled on a slight angle as she crossed the street. He further testified that he knew she was coming across the street when he first saw her. He further testified that the window was down on his left, and that he did not say anything to her nor blow his horn. Graham says when he saw her step off the curb, they were driving about thirty feet from the point of the collision.

"Killgore, who saw the accident, testified that he was driving along behind the Dr. Pepper truck some seventy-five yards; that he saw the child coming across the street as she approached the east rail of the car track; that he estimated that the child at that time was around seventy-five yards in front of the Dr. Pepper truck; (there was some question in the evidence as to whether he meant seventy-five feet or seventy-five yards). He further testified that the child went out of sight and the truck was between him and the child, then he saw the truck run over the child. He says there was nothing to interfere with his view; that the girl passed in front of the truck. He further testified that all of the truck was muddy except a place on the bumper about twelve inches wide just to the right of the left front wheel, and that this place was clean.

"Mr. Rainboldt testified that Wanda Louise Rainboldt was a fat, chubby child, about 36 inches high and six years old.

"Jay LeFevers, witness for the plaintiffs, testified that he saw her under the truck and exclaimed, `My God, they are going to run over the little girl.' That about that time the rear wheel of the truck passed over her."

The evidence is undisputed that they did not sound the horn. Appellants have cited only the evidence of Schroeder and Graham on material questions of negligence. They are interested parties and themselves defendants. Killgore's testimony was that of a disinterested person, and the jury had a right to believe him.

The evidence in this case, if it does not show as a matter of law that Schroeder was an employee of Dr. Pepper Bottling Company, certainly is sufficient to submit the issue of master and servant.

Jury may disregard testimony of interested witness. Dubinski Elec. Works v. Lang Electric Co. (Tex. Civ. App.) 111 S. W. 169, par. 3; Texas & P. R. Co. v. Taylor, 54 Tex. Civ. App. 419, 118 S. W. 1097, par. 12, affirmed 103 Tex. 367, 126 S. W. 1117, 1200; Hobart Bank v. Fordtran (Tex. Civ. App.) 122 S. W. 413, par. 1; Schumann v. Brownwood Mutual Life Ins. Ass'n (Tex. Com. App.) 286 S. W. 200, pars. 2 and 3; 17 Tex. Jur. p. 893, § 405; G., C. & S. F. R. Co. v. Dunman (Tex. Civ. App.) 15 S.W. (2d) 1053, affirmed (Com. App.) 27 S.W.(2d) 116, pars. 1 and 2, 72 A. L. R. 90.

If there is evidence, case goes to jury. Paris & G. N. Ry. Co. v. Stafford (Tex. Com. App.) 53 S.W.(2d) 1019; McNeel v. T. & N. O. R. Co. (Tex. Civ. App.) 54 S.W.(2d) 571, 573; Cartwright v. Canode, 106 Tex. 502, 171 S. W. 696; 5 Tex. Jur. 699, § 102; Temple Lumber Co. v. Living (Tex. Civ. App.) 289 S. W. 746. The contentions of appellants here are overruled.

Under appellant Dr. Pepper Bottling Company's second proposition, they contend that the court should have peremptorily instructed a verdict in this case in favor of Dr. Pepper Company, because the relationship between Dr. Pepper Company and Schroeder at the time of the injury was employer and independent contractor.

F. A. Graham testified that he was driving the truck that was involved in this accident and that he was employed by Henry Schroeder and had been in his employment somewhere around two years. The Dr. Pepper Company knew that Graham was in service and employed by Schroeder. Schroeder said: "Yes Sir, we didn't have any contract. I didn't have a contract—that is, I had no written contract." The truck in question carried the Dr. Pepper sign. Mr. Miller, the manager of Dr. Pepper Bottling Company, testified that the Dr. Pepper Company had the truck painted and that it sometimes furnished Schroeder with a truck. All trucks of defendant company have a large sign painted on them. Mr. Miller further testified that, except for the purpose of selling Dr. Pepper Bottling Company's merchandise, they would not have sent the truck salesman out. Mr. Miller further testified that as sales manager he approved the persons to whom the company would permit credit sales to be made, and, further, that the company fixed the route or designated towns to which the drivers were permitted to go, and, when so fixed, they had no right, without the company's consent, to deviate therefrom. He further testified that Schroeder would not have been permitted to leave the route fixed for him by the company. Schroeder stated: "Well, we have certain routes. We can't run in any direction we want to. We have certain routes that we are supposed to have, Yes Sir." Mr. Schroeder also testified that Dr. Pepper Bottling Company fixed the prices at which they sold, and that they sold the merchandise at the price so fixed, and Dr. Pepper Bottling Company named the towns. Mr. Miller further testified that the truck drivers and salesmen were expected diligently to serve their routes, that they not neglect any town on their routes, and that the company fixed the price at which the merchandise was sold. Mr. Miller further testified that he had the right at any time to discharge a driver whose service was unsatisfactory; that he would do so; that, if he did not go to any particular town, he could discharge him; and that was his authority over the drivers. The trucks were used to haul Dr. Pepper stuff. He further testified that he was manager down there, exercised supervision and control over the drivers, and had the right to hire and fire them, and would do so if their work was not satisfactory, and that the results he required was to sell the merchandise and make a profit. Miller further testified that helpers were...