Kelly v. Green

• Citation: 296 S.W.2d 576
• Decision Date: 23 November 1956
• Docket Number: No. 3276,3276
• Parties: F. L. KELLY et al., Appellants, v. Edward GREEN et ux., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 576

296 S.W.2d 576

F. L. KELLY et al., Appellants, v. Edward GREEN et ux., Appellees.

No. 3276.

Court of Civil Appeals of Texas, Eastland.

Nov. 23, 1956.

Rehearing Denied Dec. 14, 1956.

Wheat & Newton, Seymour, Allen, Johnson & Cherry, Wichita Falls, for appellants.

Brookreson & Brookreson, E. D. Garrison, Seymour, for appellees.

GRISSOM, Chief Justice.

Edward and Gertie Green recovered a judgment against Bobby Joe McWhorter and F. L., William R. and James B. Kelly for damages sustained in a collision between the Kellys' truck driven by McWhorter and the Greens' automobile. The Kellys have appealed.

The Kellys were partners in Kelly grain Company and owned elevators in Megargle and Weinert. McWhorter had been hired as the Kellys' 'elevator man' at Megargle but in August the Kellys had started tearing down and rebuilding their elevator at Weinert. For about five days before the collision William R. and James B. Kelly each morning drove from Megargle to Weinert in an automobile which belonged to one of them and took McWhorter with them. They would ordinarily work from nine to six o'clock tearing down and rebuilding the grain elevator and the three would usually then return to Megargle in said automobile. On August 9th the Kellys left the elevator at Weinert about 4:30 or five o'clock in the afternoon. They told McWhorter they were going to Haskell, about twelve miles away, on business and would return to the elevator and 'pick him up' about the usual quitting time. All the employees quit work about six o'clock. McWhorter waited for the Kellys about fifteen minutes. He then got in an old truck owned by the Kellys, which was being used on the elevator lot to hoist portions of the elevator wall into place and sometimes to move grain on the elevator lot, and started to Lake Kemp to fish. The collision occurred before McWhorter reached Seymour. Going from Weinert to either Lake Kemp or Megargle he would have gone through Seymour.

The controlling question is whether there was a fact issue as to McWhorter acting in the course of his employment at the time of the collision. In order for the Greens to recover damages from the Kellys for the negligence of McWhorter the Greens were required to prove by a preponderance of the evidence that McWhorter was then acting within the scope of his employment. If at the time of the collision McWhorter was not doing anything for his employers but was merely on a fishing trip for his own pleasure, of course, the Kellys were not liable for his negligence.

At the time of the collision McWhorter was in the general employment of the Kellys and he was then driving said truck. Proof thereof was sufficient, in the absence of evidence to the contrary, to raise a presumption that McWhorter was then acting within the scope of his employment. The precise question then is whether or not the testimony of all the defendants destroyed that presumption so that no issue of fact remained for submission to the jury as to whether McWhorter was acting within the scope of his employment. The clear, positive and unequivocal testimony of all of the defendants was to the effect that McWhorter had been instructed by his employers not to drive the truck on the highway and to use it only on the elevator grounds. The undisputed evidence of the defendants was to the effect that McWhorter was driving the truck at the time of the collision without the knowledge or consent of his employers and in violation of their instructions and that McWhorter was then on a mission of his own. If an issue of fact as to whether McWhorter was acting in the scope of his employment was raised, it was because such testimony came from the defendants, who are interested witnesses.

The great weight of authority recognizes that the presumption, based on the fact that the driver is in the general employment of the owner of the automobile that he was briving, that the driver was acting in the course of his employment is overcome, as a matter of law, by positive and undisputed evidence that the driver was not acting within the scope of his employment but was on a mission of his own. It has often been held that such presumption is not evidence but suffices in lieu thereof until positive evidence to the contrary is adduced by those who possess that information. Such presumption is created for administrative convenience, to be resorted to in the absence of evidence that the driver was within the scope of his employment, so as to require the party having knowledge of the real facts to produce evidence thereof. When the parties having such knowledge properly do so, such presumption disappears 'and (it) does not create a conflict with the defendant's evidence;-in such event the plaintiff must introduce independent evidence to create a conflict with the evidence of the defendant to require its submission to the jury.' 5 A.L.R.2d 204. The rule relative to presumption of agency has been stated as follows:

'Agency presumed in such case is an assumption employed to promote justice between litigants in the absence of evidence to the contrary and the consequences of the presumption are merely procedural; when met by the defendant's testimony that the truck was not being operated upon the business of the defendant, but was being used by the driver upon an errand of his own, no assumption or presumption of agency will be warranted merely from ownership and operation, and upon such evidence the presumption becomes inoperative and of no more force than as if it had never existed; and thereafter in order for the plaintiff to succeed he is bound either to discredit the defendant's evidence or to produce evidence of agency or evidence from which it could be inferred logically; and failure to do so on the part of the plaintiff would require the direction of verdict for the defendant.' (Emphasis ours.) 5 A.L.R.2d 205.

The presumption that a general employee of the owner of an automobile was operating it within the scope of his employment has been held rebutted as a matter of law by (1) 'evidence that the driver was not acting in the line of his employment, that he had positive orders not to take the car out of the garage at night unless orders were given to him to do so, that when it was taken out on this occasion it was without the defendant's knowledge or consent, that it was being driven purely on a matter of the chauffeur's own private concern, that on the night of the accident the chauffeur took the car out to pull in a broken-down car to earn some money for himself, and no evidence was offered to contradict or raise any issue of fact as to the foregoing testimony' (5 A.L.R.2d 209. See also Glassman v. Harry, 182 Mo.App. 304, 170 S.W. 403); (2) by undisputed evidence that the driver was on an errand personal to himself (5 A.L.R.2d 210. See also Ebers v. Whitmore, 122 Neb. 653, 241 N.W. 126); (3) by evidence that the car...