Gatz v. Smith

• Decision Date: 06 November 1947
• Docket Number: No. 11922.,11922.
• Citation: 205 S.W.2d 616
• Court: Texas Court of Appeals
• Parties: GATZ v. SMITH.

205 S.W.2d 616

GATZ v. SMITH.

No. 11922.

Court of Civil Appeals of Texas. Galveston.

November 6, 1947.

Rehearing Denied November 20, 1947.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Action by David E. Gatz against W. Aubrey Smith and others to recover for injuries sustained when plaintiff was struck by an automobile belonging to named defendant and driven by one of the other defendants. Directed verdict for named defendant, and plaintiff appeals.

Affirmed.

H. A. Crawford, Albert P. Jones, and Helm & Jones, all of Houston, for appellant.

Fulbright, Crooker, Freeman & Bates, of Houston, for appellee.

CODY, Justice.

This was an action by appellant for damages sustained when he was struck by an automobile belonging to appellee, which was driven by Bennie Winston, who was in the general employment of a Mr. Grissom who conducted an automobile repairing business in Houston under the name of "A & B Garage." The defendants were appellee, and the aforesaid Grissom, doing business as A & B Garage, and Bennie Winston. Appellant alleged, in alternatives, that in driving the automobile on the occasion in question Bennie Winston was the agent of: (1) Appellee; (2) appellee and Grissom, jointly; (3) Grissom.

At the conclusion of appellant's (plaintiff's) evidence, both appellee and Mr. Grissom severally moved for a directed verdict. the court granted appellee's motion, but refused Grissom's. Appellant thereupon dismissed as to Mr. Grissom and Bennie Winston. The court then directed a verdict for appellee, and rendered a take-nothing judgment against appellant. Appellant predicates his appeal upon a single point, as follows:

Point: "The trial court erred in sustaining the motion—for instructed verdict because the evidence raised a fact question as to whether Bennie Winston was acting as (appellee's) agent on the occasion of the accident of May 26, 1945, * * *."

The evidence bearing on whether Bennie Winston was driving as servant of appellee when the accident occurred must be considered in the light most favorable to appellant's contention. The version of the facts most favorable to appellant is:

That Mr. Grissom, doing business as A & B Garage, was the proprietor of an automobile repair shop in Houston. That he had eighteen employees, including two Negro porters, one of whom was the said Bennie Winston. Ordinarily, "porter work" consisted of washing and greasing cars, cleaning up the premises, and driving a pick-up truck to get parts. On May 25, 1945, appellee left his automobile at the A & B Garage to be repaired. The following day was Saturday, and on Saturdays the A & B Garage closed at 1:00 p. m. About noon on Saturday appellee, whose office was in the Esperson Building, phoned to see if the car was ready for delivery. Appellee then told Grissom that he was going to be detained at his office until after 1:00 p. m., and requested that delivery of his car be made at the Esperson Garage. This Grissom agreed to do. He accordingly ordered Winston to deliver appellee's car at the Esperson Garage. While Winston was engaged in obeying Grissom's orders, he struck appellant with appellee's car.

That on occasions, when customers requested it, the A & B Garage would deliver cars, which had been repaired there, at places other than said Garage, if there was help available. But such service was gratis —done as a matter of courtesy or accommodation; to use a homely expression or colloquialism, such service was rendered as "lagniappe."

It is the position of appellant in this case: That where a repairman is under no legal obligation to deliver a repaired car (other than at his shop), but does agree, as a favor, after the repairs have been made, to deliver the car at a place designated by the customer, and pursuant to such agreement orders one of his employees (i. e., a workman in the repairman's general employment), to make such delivery, that said employee becomes the particular servant of the customer in making such delivery, and the customer is liable for said employee's actionable negligence. As supporting such position, either directly or impliedly, appellant cites the following cases, of which the first two are by Texas Courts: Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Main Street Garage v. Eganhouse Optical Co., Tex.Civ. App., 223 S.W. 316; Marron v. Bohannan, 104 Conn. 467, 133 A. 667, 46 A.L.R. 838; Janik v. Ford Motor Co., 180 Mich. 557, 147 N.W. 510, 52 L.R.A.,N.S., 294, Ann.Cas. 1916A, 669; Baker v. Allen & Arnink Auto Renting Co., etc., 190 App.Div. 39, 179 N.Y.S. 675, modified on other grounds, 231 N.Y. 8, 131 N.E. 551; Jimmo v. Frick, 255 Pa. 353, 99 A. 1005; Manhattan Fire, etc., Ins. Co. v. Grand Central, etc., 54...