Howard v. American Paper Stock Co.

• Decision Date: 25 April 1975
• Docket Number: No. 17614,17614
• Parties: L. M. HOWARD, Appellant, v. AMERICAN PAPER STOCK COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 744

523 S.W.2d 744

L. M. HOWARD, Appellant, v. AMERICAN PAPER STOCK COMPANY, Appellee.

No. 17614.

Court of Civil Appeals of Texas,

Fort Worth.

April 25, 1975.

Opinion on Rehearing May 16, 1975.

Law Offices of Herrick & Ward, and Richard E. Ward, Fort Worth, for appellant.

Brown, Crowley, Simon & Peebles, and M. Hendricks Brown, Fort Worth, for appellee.

OPINION

MASSEY, Justice.

For personal injuries sustained in a collision between a truck of the defendant American Paper Stock Company and an automobile in which plaintiff L. M. Howard was a back seat passenger, suit for damages because of plaintiff's personal injuries was brought under the theory of negligent tort.

E. W. Allen, driver of the truck of the defendant on the occasion in question and for whose negligence the jury found defendant liable to plaintiff under the theory of Respondeat superior, was never made party to the suit. Allen was the brother-in-law of Jerry Hart, who was the owner and operator of the automobile in which plaintiff was passenger. He was also the brother-in-law of the plaintiff.

By answers returned to special issues the jury found that: E. W. Allen was in the course and scope of his employment by defendant upon the occasion in question. The jury also found further: that he negligently failed to keep a proper lookout; drove the truck at a greater rate of speed than a person of ordinary care; failed to make such application of brakes as a person using ordinary care; knowingly drove the truck when the brakes thereon were insufficient to bring the same safely to a stop; and followed the automobile in which plaintiff was passenger more closely than a person using ordinary care would have followed. The jury found that each act or omission constituting negligence amounted to a proximate cause of the collision and consequent injuries to plaintiff. The jury found the following as sums which as of date of the verdict, would reasonably compensate him therefor: (a) $22,600.00 for past physical pain and mental anguish; (b) $30,000.00 for physical pain and mental anguish he will suffer in the future; (c) $2,400.00 loss of earnings in the past; and (d) $50,000.00 as the loss of earning capacity which, in reasonable probability, he would suffer in the future.

Thereafter the defendant filed its Motion for Judgment Notwithstanding and to Disregard Findings of the Jury. The court granted the motion and entered judgment that plaintiff take nothing. Plaintiff appealed.

We reverse and render.

The parties are in agreement that the trial court rendered its judgment Non obstante veredicto on the theory that as a matter of law E. W. Allen, driver of defendant's truck, was not acting within the scope and course of his employment by the defendant at the time of the collision. We have reviewed the entire record and will state that our holding is that each and every jury finding upon Allen's negligence, amounting to proximate cause of the collision, was supported by the evidence. Defendant has no cross point by which it contends that there was no evidence supporting the submission of such issues to the jury or that the jury findings in respect thereto were contrary to the greater weight and preponderance of the evidence.

Shortly prior to the occurrence of the collision E. W. Allen, at the direction of defendant, drove the truck toward the west on Vickery Boulevard in Fort Worth, Texas to a warehouse of a third person to receive delivery of rolls of paper. The paper having been loaded on the truck Allen departed such premises and drove back out onto Vickery Boulevard and turned and drove in an easterly direction thereon until the time of the collision. The collision occurred immediately to the west of the intersection of Vickery Boulevard with Hemphill Street. Thereat the automobile of Jerry Hart, in which plaintiff was a back seat passenger, had been stopped in obedience to the change of signal lights from the green to 'Go' signal to the red 'Stop' signal for vehicular traffic traveling east. Hart's automobile had been proceeding in an easterly direction.

The truck of the defendant, driven by E. W. Allen, struck head-on into the left part of the rear of Hart's automobile and knocked it forward out into the intersection. The force of the collision broke the front seat of Hart's automobile, occupied by Hart and a front seat passenger, and it moved backward so that plaintiff was 'pinned' in the rear seat. Extrication of plaintiff required approximately 30 minutes.

The record is entirely silent upon the matter of when, if ever, Hart became aware that Allen was driver of the truck which ran into his automobile. Hart did not testify. Plaintiff learned of the fact the day following the collision.

According to Allen (and Allen alone) he at some time, either immediately upon departing the premises on Vickery Boulevard, or by reason of discovery while he was thereafter driving in an easterly direction on that street, became aware that it was the automobile of his brother-in-law Hart which was ahead of him and that it was Hart who was driving.

Allen decided to pursue and overtake Hart so that he could converse with him upon purely personal matters. He testified that he pursued approximately a quarter-mile, but had not caught up with the Hart automobile when it stopped at the intersection of Vickery Boulevard with Hemphill Street. He testified that he was driving with his truck in 'second gear' and was about a car length behind the Hart automobile when he discovered the fact of the signal light change and that Hart was stopping his automobile in obedience thereto; that he was unable to get his brakes to stop the forward motion of the truck; and that he tereupon attempted to turn to the left, but was unable to avoid running into the rear of the automobile. Further, Allen testified that the route he was traveling, to-wit: in an easterly direction on Vickery Boulevard, was the route he would have, in any event, taken on his return trip to the premises of his employer. This fact seems to be without dispute in the record.

In other words this is a situation where Allen was pursuing Hart; where if Hart had made a turn so as to go south on a side street Allen might have pursued by making a like turn and thereby have made a deviation which would have removed him from the scope and course of his employment, for his admitted intention was to overtake and converse with Hart. But Hart made no such turn and proceeded. straight ahead; so Allen proceeded straight ahead also, making no deviation which would have removed him from the scope and course of his employment. There was no deviation which could be said to have occurred as a matter of law because the route traveled would have been the same had Allen's sole purpose been to return to the premises of his employer, according to his duty. The evidence showed that the acts and conducts of Allen might have been for a dual purpose, one of which was in furtherance of the business affairs of the defendant.

It is settled in our law that in these circumstances the jury's fact finding that an employee continued to be acting within the scope and course of his employment and in furtherance of the affairs of his employer is determinative of the issue. Under the verdict returned in this case Allen's employer became responsible for his actions under the doctrine of Respondeat superior. If the purpose of serving the master's business actuates the servant to any appreciable extent his acts are within the scope of the employment. Late cases under the 'dual purpose' doctrine include Gulfcraft, Inc. v. Henderson, 300 S.W.2d 768, 772 (Galveston, Tex.Civ.App., 1957, no writ history) and M. K. Hall Company v. Gaballero, 358 S.W.2d 179 (Eastland, Tex.Civ.App., 1962, writ ref., n.r.e.). See also Restatement of the Law, Agency, Ch. 7, 'Liability of Principal to Third Person; Torts', Sec. 226, 'Servant Acting for Two Masters', and Sec. 236, 'Conduct Actuated by Dual Purpose'; 27A Tex. Digest, k302(...