Guitar v. Wheeler

• Decision Date: 29 January 1931
• Docket Number: No. 2481.,2481.
• Citation: 36 S.W.2d 325
• Parties: GUITAR et al. v. WHEELER et al.
• Court: Texas Court of Appeals

36 S.W.2d 325

GUITAR et al. v. WHEELER et al.

No. 2481.

Court of Civil Appeals of Texas. El Paso.

January 29, 1931.

Rehearing Denied March 5, 1931.

Appeal from District Court, Howard County; Fritz R. Smith, Judge.

Action by Myrtie Wheeler, for herself and as next friend of Luther Wheeler and another, minors, and others, against John Guitar and others, individually and as trustees for the Guitar Trust Estate, and others. Judgment for plaintiffs, and defendant trustees appeal.

Reversed and remanded.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellants.

Clyde E. Thomas and Martelle McDonald, both of Big Spring, for appellees.

WALTHALL, J.

Myrtie Wheeler, for herself and as next friend of Luther Wheeler and Alma Wheeler, minors, and Bernice Vale, joined by her husband, Jack Vale, plaintiffs, brought this suit against John Guitar, Sr., John Guitar, Jr., and Repps B. Guitar, individually, severally, and in their respective capacities, as trustees for, and owners and parties at interest in the Guitar Trust Estate, together with others named as parties at interest in said estate, and W. B. Tidwell, to recover damage for the death of George S. Wheeler as the result of being struck by an automobile driven by W. B. Tidwell; the petition alleging that Tidwell was an employee of the Guitars above named in driving said car, and that in driving the car he negligently caused the car to strike Wheeler, thus causing his death.

Defendants, except Tidwell, answered by general denial, alleged that Tidwell was not in their employ at the time of the accident causing the death of Wheeler, but was on a mission of his own, and was not in the performance of any duty he owed defendants; defendants pleaded contributory negligence on the part of Wheeler.

Tidwell answered by general denial and contributory negligence of Wheeler.

On special issues submitted, the jury found that Tidwell, at the time and place and in the manner testified to, was guilty of negligence in the operation of his car, and that such negligence was the direct and proximate cause of the death of Wheeler; that Tidwell, on the occasion in question, was acting within the scope of his employment as foreman of the farm of defendants named, trustees. The jury stated the damages found; the jury also found that Wheeler was not guilty of contributory negligence at the time of the accident in which he was killed.

The court entered judgment in favor of plaintiffs against Tidwell individually, and against the three Guitars named in their respective capacities as trustees of the Guitar Trust Estate, but not personally. The Guitars, as trustees of said estate, prosecute this appeal.

Opinion.

The case must be reversed on appellants' propositions 5, 6, and 7, but, in view of another trial, we think best to express our view on the other issues presented.

Appellants submit that the evidence is wholly insufficient to show that at the time of the accident causing the death of Wheeler, Tidwell, the driver of the car that struck Wheeler and killed him, was engaged in any business of appellants, or was acting within the scope of his employment, or was then engaged in any business for which he was employed by appellants, and, for reasons stated, that it was error to refuse to give appellants' peremptory charge instructing the jury in their favor.

Appellees' petition alleged that Tidwell, at the time and place of the accident, and in driving the car that struck and killed Wheeler, was the agent of and in the employ of appellants and in the due course of the business for which he was employed.

The court submitted, and the jury found, that Tidwell at the time of the accident was acting within the scope of his employment and that finding is the basis of appellants' liability. The proposition necessitates a review of the evidence as to the service Tidwell was performing for appellants in driving the car at the time of the accident. A general employment of Tidwell by appellants, as foreman, on the farm operated by appellants, would not of itself be sufficient to show appellants' liability; the evidence must show that in driving the car at the time of the accident Tidwell was performing some service for appellants within the scope of his employment as foreman of the farm.

The facts, as we view the record, are uncontroverted, and are as follows: The circumstances under which Wheeler was killed occurred on the 26th day of December, 1928. Tidwell at that time was in the employ as general foreman on the large farm of the Guitar Trust Estate, in Howard county, under the management and control of appellants, as trustees; the estate being a family affair and owned by the members of the Guitar family. The Guitar farm is situated some fifteen miles north by west from Big Spring. In the morning, on the day in question, Tidwell, with his wife and children, drove to Big Spring in an automobile. The purpose of his trip to Big Spring on that occasion was that his wife might do some shopping, but on no business for his employers, the Guitars. Shortly after reaching Big Spring, Tidwell met a Mexican man named Billaba. The meeting with Billaba was casual and not by previous appointment. Billaba asked Tidwell about some grubbing to be done on the Guitar farm. The result of the conversation was that Tidwell, in the morning of that same day, took Billaba in the car out to the farm where the grubbing was to be done, taking his family with him at the same time. It was a part of his duty as foreman of the Guitar farm to have the grubbing done, and, in taking Billaba to the place of the grubbing, Tidwell was in the performance of his duty as foreman. After showing Billaba the grubbing to be done, Tidwell took his family on to their home, taking Billaba with him, and then, in the afternoon of the same day, returned to Big Spring in the car, bringing Billaba with him.

The evidence is not clear as to whether Tidwell, in taking Billaba to the place of the grubbing, agreed to bring him back to Big Spring, but from the evidence we find that he did so agree; it is clear that he did bring him back.

After remaining in Big Spring several hours at that time, Tidwell, while returning to his home in the car on the public highway, struck and killed Wheeler. The question presented is: In returning to his home, was Tidwell at that time, in the course of his employment as an employee of appellants? We think the facts stated, borne out by the evidence, were sufficient to take the issue to the jury. Had Tidwell left Billaba at the farm, or, having brought Billaba by Big Spring, had the accident occurred at Big Spring after Tidwell had returned Billaba to Big Spring, and before he had started on his return to his home, a different question would be presented. We think it was within the scope of Tidwell's employment in returning to his farm headquarters home after having taken Billaba back to Big Spring. It could hardly be said that after returning Billaba to Big Spring Tidwell's return trip home was for his own convenience. Pierce-Fordice Oil Ass'n v. Brading (Tex. Civ. App.) 212 S. W. 707. It was an issue for the jury and not the court.

It is true, as suggested by appellants, that, while Tidwell was at Big Spring and before starting on this return to his headquarters, he did turn aside from his master's service, but the negligent act causing the death of Wheeler did not occur while he was so turned aside, but after he had resumed his service and was on his home trip.

We have reviewed the cases cited by appellants and think none of them are in point on the facts here. The liability of appellants is to be determined by the application of the general principles of the law of master and servant. As suggested by appellants, the burden is upon appellees to show that Tidwell did the negligent act causing the death of Wheeler while acting within the scope of his employment. The act must be done in furtherance of the master's business and for the accomplishment of the object for which Tidwell was employed. Beyond the scope of his employment the servant is as much a stranger to the master as any third person.

The court instructed the jury: "Special Issue No. 3: Do you find from a preponderance of the evidence that W. B. Tidwell, in making the trip to Big Spring and back to his farm on the afternoon of December 26th, 1928, was acting within the scope of his employment as foreman of the farm of defendants, John Guitar, Sr., John Guitar, Jr., and Repp Guitar, Trustees? Answer yes or no."

Appellants suggest that the charge was duplicitous, that it submits a mixed question of law and fact, was confusing and misleading, in that it gives to the jury too wide latitude to determine the term "scope of employment," and does not confine the jury to the issue actually made as to whether or not Tidwell was, at the time of the accident, engaged in furtherance of appellants' business or any work of appellant.

Except as to the duplicity feature of the charge, which we will discuss later, we do not think the objections are well taken. By the verbiage of the charge, the jury is confined to the trip made "in the afternoon" of that day. All the evidence shows that the first trip Tidwell made was with his family and was in the forenoon, and that the trip with Billaba, both going to Big Spring and returning to his home, was in the afternoon; the circumstances of the afternoon trip were the only ones involved here, and the only ones referred to in the charge.

We think it was proper to submit the afternoon trip as a unit, since the jury must consider the circumstances of that entire trip in determining the point submitted, whether at the time of the accident Tidwell's trip in returning to his farm headquarters was an act within the scope of his employment as foreman of the farm. If we are not mistaken in that, the charge was not objectionable other than being duplicitous. The fact of returning Billaba to Big Spring under the...