Hunsucker v. Omega Industries

• Decision Date: 27 July 1983
• Docket Number: No. 05-82-00426-CV,05-82-00426-CV
• Citation: 659 S.W.2d 692
• Parties: Nancy T. HUNSUCKER, Appellant, v. OMEGA INDUSTRIES, Appellee.
• Court: Texas Court of Appeals

Page 692

659 S.W.2d 692

Nancy T. HUNSUCKER, Appellant, v. OMEGA INDUSTRIES, Appellee.

No. 05-82-00426-CV.

Court of Appeals of Texas Dallas.

July 27, 1983.

Rehearing Denied Sept. 26, 1983.

Lee M. Taft, Carter, Jones, Magee, Rudberg, Moss, Dallas, for appellant.

John Marks, Jr., Strasburger & Price, James H. Moody, III, Strasburger & Price, Dallas, for appellee.

Before AKIN, WHITHAM and SHUMPERT, JJ.

AKIN, Justice.

Nancy Hunsucker, plaintiff, appeals from a summary judgment in favor of the defendant, Omega Industries. The principal question presented is whether proof of ownership of a vehicle causing an accident raises a legal presumption that the vehicle was being operated by an employee in the scope of his employment. We hold that it does. A second question is whether affidavits of interested witnesses, Omega's employees, may be relied upon for summary judgment. We hold that they may not be so relied upon because they but raise a fact issue in this case. A third question is whether Omega established as a matter of law that it was not negligent in leaving the keys in the truck's ignition. We hold that questions of foreseeability and reasonableness are inherently questions for the finder of fact but that this action was not negligence per se. Accordingly, we reverse and remand.

This dispute arose when Hunsucker's vehicle struck a guardrail in an attempt to dodge a pick-up truck which swerved toward her. The accident occurred on a Sunday. The pick-up truck, which did not stop at the scene of the accident, was identified by two witnesses who followed the truck to obtain its license plate number. These two witnesses also reported that two women were in the truck. No further evidence was given as to the identity of the occupants since Hunsucker had no memory of the accident. The license number showed that the pick-up truck belonged to Omega, which admitted that it owned a truck similar to the one involved in the accident and that the truck it owned had the same license number as the vehicle involved in the accident. By summary-judgment evidence, Omega showed that its truck with this license number was a vehicle which it used in its business, but that on the weekends it was stored, with the keys in the ignition, in a locked building. Nineteen employees of Omega had keys to the building. Each of these employees signed an affidavit, in support of the motion for summary judgment, stating that each had no knowledge of use of the truck on the date of the accident and that none of the nineteen employees had authorized the use of this vehicle to anyone else on that date. No evidence was tendered of theft or wrongful entry of the building in which the truck was stored. Apparently, upon this summary judgment evidence, the trial judge granted Omega summary judgment against Hunsucker in her suit for damages resulting from the accident.

Hunsucker alleged three causes of action against Omega. In her original and first amended petition, she alleged that Omega was vicariously liable for the negligence of the driver of the truck. In her second amended petition she added an allegation that Omega was negligent per se under TEX.REV.CIV.STAT.ANN. art. 6701d § 97 (Vernon 1977) in leaving the keys in the ignition of the truck. In her third amended petition, she alleged that leaving the keys in the ignition was common-law negligence. Omega's motion for summary judgment went only to the allegations of negligence in Hunsucker's first two petitions, but did not include as a ground that leaving the key in the truck's ignition did not raise an issue of common-law negligence.

Hunsucker first argues that Omega was vicariously liable for the conduct of the truck driver because, upon proof that the vehicle was owned by Omega, a presumption arose that the driver was an employee of Omega and that the employee was in the scope of his employment. In this respect, she also contends that Omega's attempt to rebut this presumption by the use of affidavits of interested witnesses, its employees, raises but a fact issue.

We begin our analysis by noting that Hunsucker and Omega disagree as to the proof which is necessary for a presumption to arise that a driver is an employee in the scope of his employment. Hunsucker contends that by proving ownership of the vehicle a presumption arises that the driver was an employee of the owner and that the employee was in the scope of his employment. On the other hand, Omega contends that stricter proof is required before the presumption arises. In Omega's view, proof of ownership of the vehicle and proof that the driver was an employee of the owner must be presented before a presumption arises that the driver is in the scope of his employment.

We have examined the cases cited by the parties, as well as many more, and have concluded that a split of authority exists as to what proof must be presented before the presumption of scope of employment arises. Wheeler v. Nailling, 524 S.W.2d 552, 553 (Tex.Civ.App.--Texarkana 1975, no writ). See 1R. Ray, Texas Law of Evidence Civil and Criminal § 97 (Texas Practice 3d. ed. 1980), and Comment, Presumptions and Third Party Liability in Automobile Accident Cases, 2 Baylor Law Review 432 (1950). One line of cases, which supports the contention of Hunsucker, holds that upon proof of ownership the presumption arises that the driver was an employee in the scope of his employment. Wheeler, 524 S.W.2d at 552; Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App.--Texarkana 1966, writ dism'd); Whittle v. Saunders, 396 S.W.2d 155 (Tex.Civ.App.--San Antonio 1965, no writ); Henderson Drilling Corp. v. Perez, 304 S.W.2d 172 (Tex.Civ.App.--San Antonio 1957, no writ); Merryman v. Zeleny, 143 S.W.2d 410 (Tex.Civ.App.--Amarillo 1940, no writ); Alfano v. International Harvester Co. of America, 121 S.W.2d 466 (Tex.Civ.App.--Dallas 1938, writ dism'd); Harper v. Highway Motor Freight Lines, 89 S.W.2d 448 (Tex.Civ.App.--Dallas 1935, writ dism'd). Another line of cases, many of which Omega cites, holds that upon proof of ownership and employment of the driver, a presumption arises that the driver was in the scope of his employment. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.1971); Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940); City of Houston v. Wormley, 623 S.W.2d 692 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.); Nu-way Oil Company v. Trac-Work, Inc., 601 S.W.2d 209 (Tex.Civ.App.--Waco 1980, no writ); Pate v. Southern Pacific Transportation Co., 567 S.W.2d 805 (Tex.Civ.App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.); Kulms v. Jenkins, 557 S.W.2d 149 (Tex.Civ.App.--Amarillo 1977, writ ref'd n.r.e.); Gebert v. Clifton, 553 S.W.2d 230 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ dism'd); Gaber Co. v. Rawson, 549 S.W.2d 19 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.); Kimbell Properties, Inc. v. McCoo, 545 S.W.2d 554 (Tex.Civ.App.--Amarillo 1977, no writ); Salmon v. Hinojosa, 538 S.W.2d 22 (Tex.Civ.App.--San Antonio 1976); Howard v. American Paper Stock Co., 523 S.W.2d 744 (Tex.Civ.App.--Fort Worth 1975, reformed and affirmed, 528 S.W.2d 576); Creekmore v. Horton & Horton, Inc., 487 S.W.2d 148 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.); Czikora v. Hutcheson, 443 S.W.2d 871 (Tex.Civ.App.--Beaumont 1969, writ dism'd); Mitchell v. Ellis, 374 S.W.2d 333 (Tex.Civ.App.--Fort Worth 1963, writ ref'd); M.K. Hall Co. v. Caballero, 358 S.W.2d 179 (Tex.Civ.App.--Eastland 1962, writ ref'd n.r.e.); Hudiburgh v. Palvic, 274 S.W.2d 94 (Tex.Civ.App.--Beaumont 1954, writ ref'd n.r.e.); Eilar v. Theobold, 201 S.W.2d 237 (Tex.Civ.App.--San Antonio 1947, no writ); Moreland v. Hawley Independent School Dist., 163 S.W.2d 892 (Tex.Civ.App.--Eastland 1942), 169 S.W.2d 227 (Tex.Civ.App.1943); Longhorn Drilling Corp. v. Padilla, 138 S.W.2d 164 (Tex.Civ.App.--Eastland 1940, no writ); Carle Oil Co., Inc. v. Owens, 134 S.W.2d 411 (Tex.Civ.App.--San Antonio 1939, no writ); Lewis v. J.P. Word Transfer Co., 119 S.W.2d 106 (Tex.Civ.App.--Dallas 1938, writ ref'd); Weber v. Reagan, 91 S.W.2d 409 (Tex.Civ.App.--Waco 1936, writ dism'd); Houston News Co. v. Shavers, 64 S.W.2d 384 (Tex.Civ.App.--Waco 1933, writ ref'd); Texas News Co. v. Lake, 58 S.W.2d 1044 (Tex.Civ.App.--Galveston 1933, writ dism'd); Wright v. Maddox, 288 S.W. 560 (Tex.Civ.App.--Austin 1926, writ dism'd); Browne v. Hanagriff, 270 S.W. 890 (Tex.Civ.App.--Galveston 1925, no writ); Gordon v. Texas & Pacific Mercantile & Mfg. Co., 190 S.W. 748 (Tex.Civ.App.--Fort Worth 1916, writ ref'd); Studebaker Bros. Co. v. Kitts, 152 S.W. 464 (Tex.Civ.App.--San Antonio 1912, writ ref'd). The vast majority of the cases in the two lines of authority may be reconciled on the ground that those cases which hold that the presumption of scope of employment arises after proof of ownership and employment do not reach the question of whether a presumption could arise simply from proof of ownership. In each of these cases, proof of both ownership and employment existed; thus, no need existed to address the question of whether a presumption could arise in a hit-and-run situation where the driver remained unidentified.

Both lines of cases share the same rationale for the legal presumption. This rationale was stated by Chief Justice Pope during his tenure on the San Antonio Court of Civil Appeals, as follows:

The presumption grows out of the fact that not infrequently the evidence necessary to establish the character of the mission in which the servant was engaged is exclusively within the possession of the defendant. The effect of the rule is to 'smoke out' the defendant and compel him to disclose the true facts within his knowledge.

Henderson Drilling Corp. v. Perez, 304 S.W.2d 172, 174 (Tex.Civ.App.--San Antonio 1957, no writ). See also Houston News Co., 64 S.W.2d at 384.

After considering the rationale of this...