Gibson v. Gillette Motor Transport
| Decision Date | 16 February 1940 |
| Docket Number | No. 1984.,1984. |
| Citation | 138 S.W.2d 293 |
| Parties | GIBSON et al. v. GILLETTE MOTOR TRANSPORT, Inc. |
| Court | Texas Court of Appeals |
Appeal from District Court, Stephens County; B. H. Atchison, Judge.
Action by E. L. Gibson against Gillette Motor Transport, Incorporated, to recover damages for injuries resulting from a highway collision wherein the defendant asserted a cross-action against the plaintiff and impleaded Central Surety & Insurance Corporation, insurer of plaintiff. From a judgment adverse to plaintiff and Central Surety & Insurance Corporation, they appeal.
Reversed and remanded.
Floyd Jones, of Breckenridge, and Joe E. Childers and Guy R. Mobley, both of Abilene, for appellants.
L. H. Welch, of Breckenridge, and Benbow & Saunders, of Dallas, for appellee.
In this suit by E. L. Gibson against Gillette Motor Transport, Inc. to recover damages for injuries resulting from a highway collision, the defendant, in addition to defensive pleas, asserted a cross-action against the plaintiff, and impleaded Central Surety and Insurance Corporation, insurer of plaintiff, which having paid $525 to Gibson as the result of his injuries received in the collision, claimed subrogation against Gillette Motor Transport, Inc.
In a jury trial the court instructed a verdict for defendant both as against plaintiff and said Central Surety and Insurance Corporation. Plaintiff and said insurance company have appealed.
There is but one assignment of error, the basis of which being the action of the court in giving the peremptory instruction.
It appears from the briefs of the parties that the correctness of the court's action, and of the judgment based upon same, are dependent upon whether there was evidence to raise issues of fact required to be submitted to the jury of (1) whether G. B. Miller, the driver of the truck, alleged to belong to defendant, was a servant of defendant, and (2) if so, whether such servant at the time of the collision was acting within the scope of his duties or authority as such servant.
The undisputed evidence showed that the truck alleged to belong to the defendant had attached to it a large van upon which was the name "Gillette Motor Transport Inc." on the side of it. The evidence well identified G. B. Miller as the driver of the truck and that Miller was an employee of defendant. The collision occurred a few miles west of Breckenridge, Texas, upon a branch of Highway 80. The truck and trailer were heavily loaded with boxes and crates. After the collision Miller had some repairs made to the truck at Breckenridge, requesting the bill to be made out in the name of defendant. An occupant of the automobile with plaintiff, just after the collision, asked Miller who he was employed by, where his company's offices were and the number of the truck. In answer, and upon request, he wrote down upon a card the following:
"Gillette Motor Transport Inc
"G. B. Miller
"Dallas
"41."
In addition, G. B. Miller testified by deposition that defendant was his employer at the time of the collision, that he had worked for the defendant since December 1932, that he was on duty driving the particular Chevrolet truck when involved in the collision, carrying a load for the defendant, that he was making a run from El Paso to Dallas.
Regarding this testimony of Miller the briefs carry a suggestion which constitutes a conspicuous example of a strangely prevalent misconception of a well-known principle of law. The principle (stated...
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