Hudiburgh v. Palvic

• Decision Date: 16 December 1954
• Docket Number: No. 4935,4935
• Parties: Rowena Lindsey HUDIBURGH et al., Appellants, v. Tony PALVIC, Appellee.
• Court: Texas Court of Appeals

Page 94

274 S.W.2d 94

Rowena Lindsey HUDIBURGH et al., Appellants, v. Tony PALVIC, Appellee.

No. 4935.

Court of Civil Appeals of Texas, Beaumont.

Dec. 16, 1954.

Rehearing Denied Jan. 5, 1955.

Fisher, Tonahill & Reavley, Jasper, for appellants.

Faver & Barnes, Jasper, for appellee.

ANDERSON, Justice.

The appellee, Tony Pavlic, sued the appellants, Rowena Lindsey Hudiburgh and Harvey Adams, to recover damages alleged to have been sustained by him as a result of an automobile collision on April 6, 1951, between his automobile, which he was driving, and an automobile owned by Mrs. Hudiburgh but driven by Adams. Mrs. Hudiburgh was sued upon the theory that when the collision occurred Adams was acting within the course and scope of his employment as her employee. Upon a jury's special-issue verdict, supplemented by the court's finding as to the amount of property damage suffered, a joint and several judgment for $2,850 was rendered in favor of the appellee against both Mrs. Hudiburgh and Adams.

The collision occurred in the southwest quadrant of the intersection of Houston and Zavalla Streets in Jasper, Texas. Houston Street, which is 50 feet wide, runs east and west and is a link in a through highway. Zavalla Street runs north and south. The plaintiff was proceeding south ward along it. The defendant Adams was proceeding eastward along Houston Street and so, in approaching the intersection, was to the plaintiff's right side. There were no traffic lights, stop signs or other traffic controls at the intersection. The plaintiff's was the first of the two automobiles to enter the intersection, and by the time it was struck its front end had almost reached the south margin of Houston Street. Its speed while passing through the intersection was estimated to be from eight to twelve miles per hour. The plaintiff testified that just before the collision the defendant Adams appeared to be looking to his (Adams') right. Adams himself testified that as he approached and entered the intersection he was looking straight ahead, to the right of the center line of Houston Street, and that when he first saw plaintiff's automobile its front end was about to said center line. He estimated that the two cars were then within thirty or forty feet of one another. He applied the brakes on the car he was driving, swerved to the right or toward the south, the direction in which plaintiff was traveling, and the front end of his automobile struck plaintiff's automobile about midway of the latter's right side.

The jury found, in substance, that when the collision occurred Adams was in the employ of Mrs. Hudiburgh, was driving her automobile with her consent, and was acting in the course of his employment; that Adams failed to keep a proper lookout, and that this was negligence and a proximate cause of the collision; that Adams failed to yield the right-of-way, and that this was negligence and a proximate cause of the collision; that Adams failed to steer the Hudiburgh automobile to the left, but not that this was negligence. It failed to find from a preponderance of the evidence that Adams was driving at an excessive rate of speed. The plaintiff was not found to have been negligent in any particular. The collision was found not to have been the result of an unavoidable accident.

The first question for review is that of whether there was any evidence from the plaintiff's point of view to raise a fact issue for the jury as to whether Adams was acting within the course and scope of his employment as Mrs. Hudiburgh's employee when the collision occurred. The question was raised by Mrs. Hudiburgh in the trial court by both a motion for directed verdict and a motion for judgment despite the verdict. Both motions were overruled, and each of these rulings is now assigned as error.

Aside from proof of certain physical facts and of Mrs. Hudiburgh's ownership of the automobile involved, which is undisputed, the evidence bearing on the point was supplied altogether by the uncorroborated testimony of the defendant Adams, who was called by the plaintiff to testify under the adverse witness rule-i. e., Rule 182, Texas Rules of Civil Procedure.

Disregarding portions of his testimony which may have tended to show that he was employed by Mrs. Hudiburgh's son-in-law rather than by Mrs. Hudiburgh herself, Adams testified to substantially the following: He had been regularly employed by Mrs. Hudiburgh during the four years preceding the date of the collision, and was in her employ on that date. He was primarily employed to work about the yard and house. Though not employed as a chauffeur, he had a chauffeur's license, and when directed to do so he drove Mrs. Hudiburgh's automobile on errands for her. Shortly before the collision Mrs. Hudiburgh directed him to take her granddaughter to school in the automobile and then return directly to the Hudiburgh home. In order to perform this mission, it was only necessary that he proceed south about half a block along a street that ran by the Hudiburgh garage, turn west and proceed along College Street a distance of approximately four blocks to the schoolhouse, and then return along the same route; an overall distance of some ten blocks. Since both the Hudiburgh residence and the schoolhouse were situated west of the business district of Jasper, it was not necessary that he pass through the business district in performing his assignment. He drove directly to the schoolhouse by way of the route above mentioned, but did not return to the Hudiburgh residence by the same direct route. Instead, after discharging his passenger at the schoolhouse, he proceeded by way of Houston Street-a street that parallels College Street, but is two blocks south of it-up to, through, and on east of the courthouse square, which is the hub of the business district of Jasper. The collision occurred one block east of the courthouse square, or approximately seven blocks east of the schoolhouse. At that immediate time-still according to his testimony-Adams was on his way to a filling station which was situated a block east of the scene of the collision, for the purpose of purchasing flashlight batteries for his own use; intending to procure the batteries, carry them to his residence, which ws situated about three-fourths of a mile south or southeast of Jasper, and install them in his flashlight. He disclaimed any intention of using his flashlight in connection with his work for Mrs. Hudiburgh, and denied that he had ever used it in that connection. He also denied that in going for the batteries he was acting with Mrs. Hudiburgh's knowledge or consent, and said that he was acting in disregard of her instructions that he return straightway from the schoolhouse to her residence.

The only evidence, therefore, tending to show that at the time of the collision Adams was acting within the course and scope of his employment as Mrs. Hudiburgh's employee consists of the combination of circumstances that he was regularly employed by her, was driving her automobile, and had been sent by her on a mission from which he had not yet returned to the base to which he had been directed to return.

The appellee argues that these facts, standing alone and unaided by presumptions, are sufficient to raise a fact issue for the jury on the question. He also argues that they raise a presumption that Adams was acting within the course and scope of his employment, and that this presumption was not as a matter of law rebutted or overcome by the uncorroborated testimony of Adams, he being an interested witness, and the jury being at liberty to disregard his testimony. On the other hand, the appellants argue not only that appellee failed to discharge the burden of proving that Adams was acting in the scope of his employment, but that the evidence conclusively established that Adams had abandoned the mission on which he had been sent and was on one exclusively his own when the collision occurred.

In the absence of evidence to the contrary, the fact that Adams was driving Mrs. Hudiburgh's automobile, together with the fact that he was regularly employed by her, was unquestionably sufficient to raise a presumption that he was acting within the course and scope of his employment when the collision occurred. Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, writ refused; Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, writ refused; Empire Gas & Fuel Co. v. Muegge, Tex.Com.App., 135 Tex. 520, 143 S.W.2d 763, opinion adopted. However, we are unable to agree that this presumption was not rebutted or dispelled by the uncorroborated testimony of the defendant Adams. His testimony, insofar as it bears on this point, was clear, positive and uncontradicted; and we think that in Empire Gas & Fuel Co. v. Muegge, supra, it was impliedly held, if not actually so, that this kind of evidence, even though supplied by a party at interest, dispels the presumption or prevents it from being indulged. We think also that this is the only conclusion that will harmonize with certain principles of our law that are too well established to permit of argument; for example, the principles that: (1) The burden of persuading the trier of the facts that the servant was acting in the scope of his employment was on the plaintiff. Brown v. City Service Co., Tex.Com.App., 245 S.W. 656, opinion adopted. (2) This burden did not shift to the defendant during the progress of the trial. Grieger v. Vega, Tex.Sup., 271 S.W.2d 85, 89. (3) The presumption 'is not 'evidence,' and, when met by rebutting proof, is not to be weighed by the jury as evidence in arriving at a verdict', and it is 'not to be regarded as having raised an issue or issues of fact for the jury's determination' when it is met by 'positive rebutting proof.' Empire Gas & Fuel Co. v. Muegge, supra. (4) The facts giving rise to the presumption-i. e., ownership of the offending vehicle, plus regular employment of the...