G. & H. Equipment Co., Inc. v. Alexander, 17687

• Decision Date: 13 February 1976
• Docket Number: No. 17687,17687
• Citation: 533 S.W.2d 872
• Parties: G. & H. EQUIPMENT COMPANY, INC., Appellant, v. Perry D. ALEXANDER, Appellee.
• Court: Texas Court of Appeals

Page 872

533 S.W.2d 872

G. & H. EQUIPMENT COMPANY, INC., Appellant, v. Perry D. ALEXANDER, Appellee.

No. 17687.

Court of Civil Appeals of Texas,

Fort Worth.

Feb. 13, 1976.

Rehearing Denied March 5, 1976.

Brown, Crowley, Simon & Peebles, and M. Hendricks Brown, Fort Worth, for appellant.

Rex McEntire, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

This is a suit for damages for personal injuries that resulted from an automobile wreck. It was brought by the plaintiff, Perry D. Alexander, against the two defendants, Farest E. Brooks and G. & H Equipment Co., Inc. The suit was brought on the theory that defendant, Brooks, was an employee of the other defendant and that while Brooks was acting within the scope of his employment for G. & H. Equipment Co., Inc., he was guilty of negligence that proximately caused the wreck in question and the plaintiff's injuries.

Upon receipt of the jury's verdict the trial court rendered judgment for the plaintiff and against the two defendants in the amount of $182,104.61 and this appeal is being made by the defendant, G. & H. Equipment Co., Inc., from that decree. The other defendant, Brooks, has not appealed.

We affirm.

Defendant's first point of error is that the trial court erred in granting the plaintiff's motion for judgment and in overruling the defendant's motion for judgment. Defendant's contention under that point is that the plaintiff failed to get the court to submit to the jury in its charge an issue inquiring as to whether or not Brooks, on the occasion in question, was acting within the scope of his employment for the defendant, G. & H. Equipment Co., Inc., at the time of the wreck, and that that issue was, within the meaning of Rule 279, T.R.C.P., one involving an independent ground of recovery, and that by failing to get it submitted to the jury the plaintiff waived such issue. The defendant contends that by reason of such waiver it was entitled to have judgment rendered in its favor.

We overrule that point.

In its charge that trial court submitted issues inquiring whether defendant, Brooks, committed negligent acts or omissions that proximately caused plaintiff's injuries and submitted damage issues. The trial court did not submit an issue inquiring whether or not Brooks was acting within the scope of his employment for appellant at the time of the wreck. No one requested such an issue and no one objected to this omission until after verdict.

We will refer in this opinion to the defendant, G. & H. Equipment Co., Inc., as appellant, to the defendant, Farest Brooks, as Brooks, and to the plaintiff, Alexander, as appellee.

In a commentary by former Supreme Court Justice Alexander that appears in Vol. 3, T.R.C.P., at page 10 under Rule 279, he says the following: 'Let us suppose a negligence suit brought by a plaintiff against a defendant-employer for injuries sustained in a collision between an automobile occupied by plaintiff and a truck driven by a person alleged to have been the defendant's servants in the course of his employment; And say that the evidence makes it a controverted issue whether the driver of the truck was in fact the defendant's employee in the course of his employment at the time. In submitting the case the court puts to the jury issues to determine whether the truck driver was guilty of the fault alleged by plaintiff, and whether such act or omission, if done, was negligence, and whether such negligence, if any, was the proximate cause of plaintiff's injuries, but fails to submit any issue, and none is requested, to have the jury find whether the truck driver was the defendant's servant acting in the course of his employment at the time of the collision. In my opinion the general understanding of lawyers is that a judgment for plaintiff under said circumstances could not be sustained by indulging a presumed finding that the driver was the defendant's servant in the due course of his employment at said time . This for the reason that said question is an inquiry distinct and independent from the questions submitted by the court.' (Emphasis supplied.)

In deciding this case we assume that the quoted statement by Judge Alexander is a correct statement of the law. We find no cases directly in point. Even if it is the law, if the issue of scope of employment was conclusively established by the evidence in this case then it was not necessary to submit an issue to the jury on that question. Rule 279, T.R.C.P.; National Security Life & Casualty Co. v. Benham, 233 S.W.2d 334 (Tex.Civ.App., Amarillo, 1950 ref., n.r.e.); and Benefit Ass'n of Ry. Employees v. O'Gorman, 195 S.W.2d 215 (Tex.Civ.App., Fort Worth, 1946, ref., n.r.e.).

We hold that the undisputed evidence in the case conclusively established the fact that on the occasion of the wreck Farest Brooks was acting within the scope of his employment for the appellant and for that reason it was not necessary for the appellee, in order to be legally entitled to a judgment against the appellant, to obtain a jury finding on the issue of scope of employment.

The defendant, Farest Brooks, was the only witness that testified to facts that related to that issue. His testimony is undisputed. He testified that on February 7, 1972, he was an employee of the appellant; he was a heavy equipment operator; that was his first day at work; his employer's place of business was at Mineral Wells, Texas; that morning he had been trying to start his employer's dragline; he discovered that its starter was burned out; he left his employer's place of business at between 11:30 and 11:45 A.M. under directions from his employer's superintendent to go to a certain business in Dallas, Texas, and there purchase a new starter for the dragline and to then return it to the employer's business at Mineral Wells on the same day; he left his employer's business and drove toward Fort Worth on a direct route to Dallas and stopped in Fort Worth and ate his noon meal; he consumed two beers with the meal and bought gasoline; he then resumed his journey to Dallas and while traveling in a direct route to the place of business where his employer had directed him to go to perform the mission for the employer he became involved in the wreck in question. Brooks made the trip in his own pickup.

If this undisputed testimony of the defendant, Brooks, is taken as true, Brooks was acting within the scope of his employment for appellant at the time of the wreck. Chisos Mining Co. v. Huerta, 141 Tex. 289, 171 S.W.2d 867 (1943), and Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154 (Tex.Sup., 1967).

The following is from the opinion in the case of Continental/Moss-Gordin, Inc. v. Martinez, 480 S.W.2d 800 (Tex.Civ.App., San Antonio, 1972, no writ hist.): 'Appellant recognizes that the law is to the effect that a person found in the employment of another is presumed to be such person's employee acting in the course and scope of his employment for such person. . . . Such presumption is not conclusive but is a rebuttable presumption.'

The fact that a witness is an employee of a party to the suit can be considered on the question of interest or partiality of the witness. 62 Tex.Jur.2d 218, Witnesses, Sec. 254. Brooks was an interested witness in the case at the time he gave his deposition testimony because he was at that time an employee of the appellant and for the further reason that he was a party to the suit.

Brooks' deposition testimony, taken while Brooks was still an employee of appellant, was introduced into evidence by appellee and he therein testified to the facts above set out which are undisputed . Brooks was later placed on the stand by the attorney representing appellant and himself and he then made no effort to dispute his former testimony and he again testified that on the day of the wreck he was an employee of the appellant. Three months after the wreck, after Brooks had recovered from his injuries, he returned to his job as an employee for appellant and worked there until October 4, 1973.

The record shows that appellant and Brooks were defended in this case by the same firm of lawyers. Those attorneys filed one answer for both defendants. After judgment was rendered in the case those attorneys filed motions for new trial for both defendants.

Although it is true that Brooks was an interested witness for the reasons above stated, his interests were the same as were the interests of the appellant. They both defended the case on the grounds that Brooks committed no act or omission of negligence on the occasion that proximately caused the wreck. They further defended the case by urging that the appellee had been guilty of contributory negligence that proximately caused the wreck. They jointly urged those matters as a defense to the suit that appellee had brought seeking a joint and several judgment against them. The interests of Brooks in the case were in no way adverse to the interests of the appellant, but were adverse to the interests of the appellee, who had offered Brooks' deposition testimony under the adverse witness rule. (Rule 182, T.R.C.P.)

The general rule is that the testimony of a party to a suit, even though uncontradicted, does no more than raise a fact issue for the jury's determination. A well recognized exception to that general rule is the following: where the testimony of an interested party is uncontradicted, is clear and positive, and there are no circumstances in evidence tending to discredit such testimony, conclusive effect will be given to it. McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943, opinion adopted) and Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex . Sup., 1965). Those cases hold that this exception is especially true and applicable where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.

In this case Brooks was present at the trial to aid his attorney in his own...