Houston News Co. v. Shavers

• Decision Date: 19 October 1933
• Docket Number: No. 1430.,1430.
• Citation: Houston News Co. v. Shavers, 64 S.W.2d 384 (Tex. App. 1933)
• Parties: HOUSTON NEWS CO. et al. v. SHAVERS.
• Court: Texas Court of Appeals

64 S.W.2d 384

HOUSTON NEWS CO. et al. v.SHAVERS.

No. 1430.

Court of Civil Appeals of Texas. Waco.

October 19, 1933.

Rehearing Denied November 16, 1933.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by Mrs. Alma Shavers against the Houston News Company and others.Judgment for plaintiff, and defendants appeal.

Reversed and rendered.

John F. Battaile, of Houston, for appellants.

Earle M. Manint and John T. Garrison, both of Houston, for appellee.

ALEXANDER, Justice.

This suit was brought by Mrs. Alma Shavers against Houston News Company, Texas News Company, and Home Indemnity Company of New York.The Houston News Company and the Texas News Company appear to be the same concern, doing business under different names.The action against Houston News Company and Texas News Company was in tort to recover damages for personal injuries sustained by plaintiff as the result of a collision which took place in the city of Galveston between a truck owned by Houston News Company and alleged to have been driven by its agent, and an automobile driven by Mrs. Anna R. Lake and in which the plaintiff was riding as a guest.The action against the Home Indemnity Company of New York was based upon a contract of indemnity insurance alleged to have been issued by said defendant for the benefit of the other two defendants and those injured by their automobiles.

A trial by jury resulted in a verdict and judgment for the plaintiff for the sum of $18,000.The defendants appealed.

The appellants contend that the trial court erred in refusing to give an instructed verdict in their behalf and in entering a judgment against them upon the verdict of the jury, because the evidence was insufficient to establish that the driver of the defendants' truck was acting within the scope of his employment as defendants' agent at the time of said collision.It is their contention that Earl Belanger, who was driving the truck which belonged to the Houston News Company at the time of the collision, was using said truck on an errand purely his own and that the finding of the jury that he was acting within the scope of his employment as a servant of the Houston News Company is wholly unsupported by the evidence.

The plaintiff called as a witness the defendants' truck driver, Earl Belanger, who testified on direct examination: "That he was in the employ of the defendantHouston News Company on the day of the accident; that his duties were to deliver magazines; that he delivered the magazines to drug stores and wholesale dealers at Houston, Galveston and Texas City; that the truck he used was the property of the Houston News Company; that the accident occurred on Saturday afternoon around 4 P. M."

On cross-examination said witness testified: "That the accident occurred on Saturday afternoon, November 1, 1930; that he worked for the News Company only five and a half days per week—working only a half day on Saturday; that he got off from work on Saturdaysat 12 o'clock, and on the day of the accident he had quit work and gone home, where he arrived about 12:30 noon, parking in front of his house; that he was off duty; that when the accident occurred he and his wife and a little child five years old were driving around `going nowhere in particular', but that they left home with the intention of going and getting groceries, going from their home on Sixth Street to the Beach Boulevard, and were traveling west on the boulevard when the accident occurred; that they were just driving out the boulevard before going to the grocery; that after the accident Mrs. Belanger drove the truck on home; `I got off of work around noon and went home to get my wife; started out to the store to get some groceries, and it was a pretty day, and we thought we would take a little ride before we went to get the groceries.'That the truck was kept in the garage at his home; that the rent on the garage where he kept the car was paid by the News Company; that Mr. Rhinelander was the manager of the company at Houston, and that he works under him.* * * That he had charge of the truck and that it was usually kept in his garage on Saturdays and Sundays; that at and prior to the time of said collision he was not allowed to use the truck on Saturday afternoon or Sundays to deliver magazines or for any other purpose, but that at the time of the trial he was allowed to use such truck for the purpose of delivering magazines on Saturday afternoon."

Mrs. Belanger, the wife of the truck driver, called by defendants, testified substantially to the same effect, corroborating the driver in his testimony as to the errand upon which they were at the time of the accident.She testified: "That Earl had come home from work for the day and `we were on our way for groceries and we took a ride on the way;' that the accident occurred about 4 o'clock Saturday afternoon; that Earl (the driver) came home about 12 o'clock noon and stayed at home until about 3:30.`We...