Harper v. Highway Motor Freight Lines

• Decision Date: 07 December 1935
• Docket Number: No. 11779.,11779.
• Parties: HARPER v. HIGHWAY MOTOR FREIGHT LINES.
• Court: Texas Court of Appeals

89 S.W.2d 448

HARPER v. HIGHWAY MOTOR FREIGHT LINES.

No. 11779.

Court of Civil Appeals of Texas. Dallas.

December 7, 1935.

Rehearing Denied January 11, 1936.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by Djelma Harper, by her next friend, against the Highway Motor Freight Lines. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

White & Yarborough, of Dallas, for appellant.

Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appellee.

BOND, Justice.

This suit was brought by Djelma Harper, a minor, by her father, R. J. Harper, for injuries sustained by her when she drove an automobile in which she and her mother were riding into the rear end of a truck parked alongside the curb of Swiss avenue in the city of Dallas, Tex.

The elements of liability and negligence alleged were that the truck belonged to Highway Motor Freight Lines, the appellee, and, at the time, was being operated by its agent and servant, a Mr. Johnson, acting within the scope of his employment; that the truck was very large, covered with a tarpaulin, and extended a distance of several feet out into the street, blocking a large portion of the street, without headlights or taillights, or any kind of warning as to give notice to the public using the street of the parked truck. In consequence whereof, the truck was not visible to the plaintiff as she approached, resulting in her serious and permanent injury. Negligence of the defendant, its agent and servant, and the specific injuries plaintiff sustained, were minutely and specifically alleged.

The case was being submitted to a jury and, at the conclusion of plaintiff's testimony, the trial court, on motion of the defendant, instructed the jury to return a verdict in favor of the defendant, resulting in judgment being entered against the plaintiff, from which this appeal is prosecuted.

The view we take of this appeal, without commenting on the weight of the evidence, justifies the conclusion that plaintiff's testimony was sufficient to raise issues of fact for the determination of the jury. The evidence, at the stage of the trial when the directed verdict was given, clearly reveals negligence on the part of the driver for leaving the truck unguarded, without lights, and obstructing a much-traveled street, resulting in damage to the plaintiff. The question of liability of the Highway Motor Freight Lines is the issue involved on this appeal.

The liability of the defendant for the negligence arising from the acts of the driver rests on three essentials, which the law places the burden on the plaintiff to prove before she would be entitled to recover: (1) The plaintiff must show ownership of the truck in the defendant; (2) the driver was an agent of the defendant; and (3) the driver was acting at the time for the defendant in the scope of his employment. The failure to prove any of these three essentials is fatal to plaintiff's suit.

To meet the burden, where facts are peculiarly within the knowledge of a defendant and which, in the nature of things, would be difficult for the plaintiff to prove, presumption may be employed, which is a procedural rule of law, calling upon the defendant to produce all the available evidence in its possession, else the presumptions arising from proven facts and circumstances are taken against the defendant in support of the issues of liability; where a reasonable inference may be drawn from established facts, the law shifts the burden from the plaintiff to the defendant. But, where the defendant, in compliance with the procedural rule, produces all available evidence in its favor, without any positive evidence tending to establish the defendant's liability, the presumptions fail, and there remains nothing to submit to the jury. Globe Laundry Co. v. McLean (Tex.Civ.App.) 19 S.W.(2d) 94; Houston News Co. v. Shavers (Tex. Civ.App.) 64 S.W.(2d) 384.

So, where liability of the defendant for the acts of the person in charge of the truck is based on ownership of the truck, proven or reasonably inferred from other facts, the presumption necessarily arises that the one in control, the driver, was the agent of the owner and, at the time, acting within the scope of his employment. And, where such presumptions are unchallenged by unequivocable evidence, they are, in law, taken as evidence of the facts, and are sufficient to make out a prima facie case of liability against the defendant. Therefore a court or jury, under such circumstances, is not authorized to disregard such presumptions, unless there is clear and positive testimony showing, or tending to show, that the inferences or presumptions do not exist.

The plaintiff introduced several witnesses who testified that there was stenciled on the left-hand door of the truck in question the name of "Highway Motor Freight Lines" and by one witness that the name of "H. Johnson" was also stenciled thereon. If plaintiff's testimony stopped there, evidently the name of the appellee on the truck tended to raise a presumption of ownership in the defendant, and the person having it in charge at the time was its agent acting on a mission for the defendant. Globe Laundry Co. v. McLean, supra; Mrs. Baird's Bakery v. Davis (Tex.Civ.App.) 54 S.W.(2d) 1031. But the testimony does not stop there. The plaintiff herself testified that about 10 days or more after the accident she had a conversation with a Mr. Davis, president of the Highway Motor Freight Lines, in which she told him that she was the girl who ran into his truck on the night of January 25th, and that Mr. Davis said: "Yes, it was my truck but it was not our fault; my driver was in the house asleep and did not even hear the collision. * * * `They put my driver in jail and kept him all night' but let him out the next morning."

We think the related declarations of Mr. Davis reasonably bear the construction that at the time of the collision the truck belonged to the defendant and that the one in...