Henderson Drilling Corp. v. Perez

• Decision Date: 12 June 1957
• Docket Number: Nos. 13202,13203,s. 13202
• Citation: 304 S.W.2d 172
• Parties: HENDERSON DRILLING CORPORATION, Appellant. v. Enedina PEREZ et al., Appellees. HENDERSON DRILLING CORPORATION, Appellant, v. Felipe ESTRADA et al., Appellees.
• Court: Texas Court of Appeals

Page 172

304 S.W.2d 172

HENDERSON DRILLING CORPORATION, Appellant. v. Enedina PEREZ et al., Appellees.

HENDERSON DRILLING CORPORATION, Appellant, v. Felipe ESTRADA et al., Appellees.

Nos. 13202, 13203.

Court of Civil Appeals of Texas, San Antonio.

June 12, 1957.

Rehearing Denied July 10, 1957.

Fulbright, Crooker, Freeman, Bates & Jaworski, Chas. D. Boston, Houston, for appellant.

Kelly, Hunt & Cullen, Rodriquez & Velasco, Victoria, Fields & Carroll, Port Lavaca, for appellees.

POPE, Justice.

We have two appeals from orders overruling pleas of privilege, and the point in each case is whether the plaintiff proved a prima facie cause of action. The records and points are identical.

Plaintiff Enedina Perez, individually and as next friend for her children, sued Henderson Drilling Corporation for damages by reason of the death of her husband, Trinidad Perez, who was driving an automobile which collided with defendant's vehicle. Felipe Estrada, his wife and minor son were passengers in the vehicle driven by Trinidad Perez, and separately sued for damages they sustained in the same collision. Defendant, Henderson Drilling Corporation, urges that plaintiffs presented no evidence and insufficient evidence to prove that the driver of defendant's vehicle was acting in the scope of his employment at the time of the accident.

The driver of defendant's vehicle was employed by Henderson Drilling Corporation at the time of the accident. He was its tool pusher and was on twenty-four-hour duty. An officer of defendant corporation stated that the driver was continuously on duty, both before and after the accident. 'Even while he was in the hospital he was on duty.' The accident occurred on Highway 35, between Point Comfort and Port Lavaca, about eleven-thirty at night. Defendant furnished its employee with a company car at all times, and he had authority to drive the car both for business and personal reasons. He was driving alone when the accident occurred. The car was a Ford and its door bore a blue plaque with the words: 'Henderson Drilling Corporation, Houston, Texas.' Whether those facts proved that the employee was in the scope of his employment is the only question.

Once ownership of a vehicle is proved, certain presumptions arise. It is then presumed that the driver of the vehicle was the owner's agent, and also that he was in the scopt of his employment. Boydston v. Jones, Tex.Civ.App., 177S.W.2d 303. When a car bears the defendant's name or brand, ownership is presumed in addition to the presumption that the driver is defendant's agent and within his scope of employment. Walker v. Johnston, Tex.Civ.App., 236 S.W.2d 534, 536; Gladewater Laundry & Dry Cleaners v. Newman, Tex.Civ.App., 141 S.W.2d 951. Whether a vehicle is branded, what the words of the brand may be, and whether the words connect the owner, present a question of fact which may be resolved by the fact finder. Walker v. Johnston, Tex.Civ.App., 236 S.W.id Walker v. Johnston, Tex.Civ.App., 236 S.W.2d Atkins, Tex.Civ.App., 223 S.W.2d 675. Those problems are not present in these cases.

Defendant's ownership of the vehicle was proved by the fact that the Ford bore the corporate brand and also by other evidence. Ownership is not a disputed issue, nor is there any dispute that the driver of the vehicle was the defendant's agent. The sole dispute is whether plaintiff proved that the driver of defendant's vehicle was in the scope of his employment. Proof of ownership, whether that proof be by a brand on the vehicle or otherwise, produces the presumption that the driver was in the scope of his employment. 9 Blashfield Cyclopedia of Automobile Law and Practice, Secs. 6056, 6057 (Perm. Ed.). A presumption is indulged in such instances, to compel a disclosure of facts peculiarly within the knowledge of the one against whom the presumption operates. Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, 386, says: 'The presumption grows out of the fact that not infrequently are evidence necessary to...