Gulf Refining Co. v. Texarkana & Ft. S. Ry. Co.

• Decision Date: 27 February 1924
• Docket Number: (No. 2853.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 169
• Parties: GULF REFINING CO. v. TEXARKANA & FT. S. RY. CO. et al.
• Court: Texas Court of Appeals

261 S.W. 169

GULF REFINING CO. v. TEXARKANA & FT. S. RY. CO. et al.

(No. 2853.)^*

Court of Civil Appeals of Texas. Texarkana.

February 27, 1924.

Rehearing Denied March 6, 1924.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Action by E. H. Denham against the Texarkana & Ft. Smith Railway Company and others. Judgment for plaintiff against defendant Gulf Refining Company and in favor of defendant railway company for cost, and, from so much of the judgment as was rendered against it in favor of plaintiff, the refining company appeals. Affirmed.

On January 27, 1922, appellee E. H. Denham suffered serious injury to his person as a result of a collision between a motor car, then being operated by employés of appellee Texarkana & Ft. Smith Railway Company over its line of railway across a public street in the city of Beaumont, and a motor truck owned by appellant, Gulf Refining Company, then being operated by one of its employés over said street. On the theory that the collision was due to negligence on the part of both appellant and the railway company, Denham brought this suit for damages against them. He made the Gulf Pipe Line Company a party defendant also, but afterwards dismissed the suit so far as it was against it.

It appeared from the testimony that the truck which collided with the railway company's car was one of six trucks used by appellant in delivering oil, gasoline, etc., to its patrons in Beaumont and near by territory around that city. Appellant had employed one Touchstone to drive the truck, and he was driving it at the time (about 12:05 p. m.) the collision occurred. Touchstone's working hours were from 7 in the morning to 5 in the afternoon, with an hour off for lunch. He had no invariable practice as to either the time when or the place where he ate lunch, but ate it at such time and places as the exigencies of his work required. On the occasion of the accident he had completed deliveries he was to make on that trip from appellant's warehouse, had taken up (at the places where he made the deliveries) an empty barrel and several empty 10-gallon cans which it was his duty to return to appellant's warehouse, and had traveled two blocks on his way, he testified, to lunch at his mother's home, which was situated, he further testified, several city blocks in a direction opposite to that of appellant's warehouse from the place where he made his last delivery. He did not in fact go to his mother's home, as he testified he intended to, but after the accident went to appellant's warehouse. It was the practice of Touchstone and the other drivers to use the trucks in going to lunch, and there was testimony that the manager of appellant's business at Beaumont knew of the practice. The manager himself testified:

"If a driver would make a delivery out past his residence, or the place where he would take his meal, and on his way back would stop there and get his meal, it was all right, but I never did know of Touchstone going out of his way to get his lunch in the truck. There was no general rule or permission for the drivers taking their trucks from the warehouse for the specific purpose of conveying them to their lunch, but, if they had some work to do for the company, they were at liberty to eat their lunch while out, provided they didn't go out of the way; I mean off the general direction."

Special issues were submitted to the jury. Their findings, so far as same concerned the railway company, were in its favor, and so far as same concerned appellant were: (1) That its truck was moving at the rate of 15 miles an hour at the time it collided with the motor car; (2) that it was negligence on the part of the driver of the truck to operate it at that speed; (3) that such negligence was a proximate cause of the injury to Denham; (4) that it was customary for drivers of appellant's trucks to use same to go to lunch in; (5) that appellant's officers or foreman in charge of the truck drivers knew of the custom, and acquiesced in it; and (6) that $7,000 would compensate Denham for the injury he suffered. The judgment appealed from was in Denham's favor against appellant for $7,000, and in the railway company's favor for costs. The appeal was prosecuted by appellant alone, and there is no complaint here of the judgment so far as it was in favor of the railway company.

Albert B. Hall, of Dallas, and John G. Gregg, of Fort Worth, for appellant.

Jones, Sexton & Jones, and Barrett Gibson, all of Marshall, and King, Mahaffey & Wheeler and Keeney & Dalby, all of Texarkana, for appellees.

WILLSON, C. J. (after stating the facts as above).

Appellant's contention that the trial court erred when he refused to instruct the jury to return a verdict in its favor is on the theory that it conclusively appeared from the testimony that the driver of the truck "was not [quoting] acting within the scope of his authority or employment or performing any service for it at the time the collision occurred."

If it so appeared, of course the court erred as claimed; for, as was said in Railway Co. v. Kirk, 102 Ind. 399, 1 N. E. 849, 52 Am. Rep. 675:

"Where a servant steps aside from the master's business and does an act not connected with the business which is hurtful to another,...