Gordon v. Texas & Pacific Mercantile & Mfg. Co.

• Decision Date: 21 October 1916
• Docket Number: (No. 8449.)
• Citation: 190 S.W. 748
• Parties: GORDON v. TEXAS & PACIFIC MERCANTILE & MFG. CO.
• Court: Texas Court of Appeals

190 S.W. 748

GORDON v. TEXAS & PACIFIC MERCANTILE & MFG. CO.

(No. 8449.)

Court of Civil Appeals of Texas. Ft. Worth.

October 21, 1916.

Rehearing Denied November 25, 1916.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Suit by Mrs. R. N. Gordon against the Texas & Pacific Mercantile & Manufacturing Company. Judgment for the defendant, and plaintiff appeals. Affirmed.

Alexander, Baldwin & Ridgway, of Ft. Worth, for appellant. John W. Wray, of Ft. Worth, for appellee.

CONNER, C. J.

Mrs. R. N. Gordon brought this suit in the district court of Palo Pinto county against the Texas & Pacific Mercantile & Manufacturing Company on February 15, 1915, for $25,000 damages because of personal injuries received by her on the night of March 24, 1914, in an automobile collision. She alleged that the defendant company was a corporation engaged in a general mercantile business at Thurber, Tex., and owned and operated an automobile truck that it used in and about its business and between the towns of Thurber and Mingus in hauling merchandise and transporting men between said towns and in protecting and looking after its property. She further alleged that on the night mentioned she, with her children and brother, was driving a onehorse buggy along the public road from Mingus to Thurber, when she met the defendant's automobile truck, driven by one of its agents and servants, and that without fault on her part, and through the negligence of said servant, the automobile ran into the buggy, threw her out upon the ground, and seriously injured her, the particulars of which we need not here specify. It was alleged that the automobile truck at the time was defective in particulars set out in the petition, and "was, at the time of the accident, being used for defendant's business." It was alleged that the defendant was negligent in permitting said automobile to be used upon the public road at night with the defects specified, and that the machine in its condition was a dangerous one, which the defendant knew, or could have known by the exercise of ordinary care. As a further ground of negligence it was alleged that the defendant employed and permitted said car to be operated by a careless, incompetent, and reckless driver. The defendant answered by general demurrer, general denial, and plea of contributory negligence. Upon the trial, which was on October 12, 1915, the case was submitted to a jury upon special issues, in answer to which the jury returned the following verdict:

"We, the jury, find that Charley De Witt (the driver of the automobile at the time in question) was not engaged in the defendant's business at the time of the accident, and was not acting within the scope, nor apparent scope, of his employment."

The jury had been instructed that in event they so answered that issue, other issues need not be considered by them, and thereupon the court entered judgment in favor of the mercantile company, from which the plaintiff has duly prosecuted an appeal.

Error is assigned to the refusal of the court to give the following special instruction:

"Gentlemen of the jury: You are instructed that though you may believe from the evidence that at the time of the accident in question the auto truck causing the accident was not being used for any business of the defendant, yet, if you believe from the preponderance of evidence that said car was owned by defendant, and that it was being driven by an employé of the defendant, and that said car was in a bad state of repair and defective, and that such defects or bad state of repair, if any, rendered said car a dangerous machine to use on the public road in the nighttime, and that defendant, or those of its agents or employés who had control and management of said car, knew, or by the exercise of ordinary care could have known, of such defective condition, if any, and knew of the danger to the traveling public incident to the operation of said car upon the public road in its defective condition, and that such use and operation of the car in such condition at said time and place was negligence, and that plaintiff was injured, and that such negligence of defendant, if any, was the proximate cause of her injuries, if any, then you will find for plaintiff."

It seems evident that the requested charge authorizes a recovery without a finding that the appellee company, through some authorized agent or source, knew, or by the use of due care should have known, that the driver of the car was using it for the purpose shown in the evidence. The charge proceeds upon the assumption, and appellant so urges, that if the machine was defective, as alleged, and as there was evidence to show, and that it was dangerous to use it upon the road at night, as was being done, and that said defects and danger were within the knowledge, actual or constructive, of the appellee company, and that the driver was one of its employés, then appellee would be liable in damages for the consequences, even though at the time in controversy the driver was not using the car in the business of his master, but for purposes of his own, or of others with him without any knowledge on the part of the master that it was at the time being so used.

The evidence substantially shows that De Witt, the driver, had for a number of years served the defendant company in the capacity of a driver of the automobile in question; that the automobile was used in the delivery of merchandise in and about the town of Thurber and on monthly trips to the town of Mingus, on the railroad a few miles away; that ordinarily deliveries of merchandise were made in the daytime, although there was evidence that occasional deliveries were made as late as 8 or 10 o'clock at night. De Witt had been furnished and kept a key to the garage in which the automobile was kept at night. The evidence is silent as to whether or not any other person had such a key. On the night in question De Witt completed his deliveries about 6:30 o'clock, housed his automobile, and thus completed his labors for the day. Some time later, between 8 and 9 o'clock, it was discovered that a fire was raging in the town of Mingus, at which point there is evidence tending to show that the defendant company owned some property, although its location and character seems not to be specified in the evidence. Upon the discovery of the fire several persons, including the chief of the fire department at Thurber, a cashier of the defendant company employed in its mercantile establishment, and perhaps one or more other employés of the defendant company induced De Witt, the driver, to go to the garage, bring out his automobile, and take a company of men, some 20 or 25, to Mingus to aid in putting out the fire. The auto was defective; it had poor lights, and possibly some defect in its steering gear, and on the journey the collision occurred of which the plaintiff complains, and the evidence leaves no doubt of her serious injury. The evidence was to the effect that Mr. Williams, one of defendant's vice presidents, and Mr. W. K. Gordon, its general manager, were the agents of the defendant company having authority and control over De Witt. It does not appear, however, that either of these agents knew on the night in question that De Witt had, or intended to take, the automobile out of the garage and make the trip to Mingus, nor is there any evidence tending to show that either of these officers ever knew of De Witt's so using the automobile in the nighttime for any like purpose. Nor does the evidence show that the chief of the fire department, or the...