Kennedy v. American Nat. Ins. Co.

• Decision Date: 23 June 1937
• Docket Number: No. 7247.,7247.
• Parties: KENNEDY et al. v. AMERICAN NAT. INS. CO.
• Court: Texas Supreme Court

107 S.W.2d 364

KENNEDY et al. v. AMERICAN NAT. INS. CO.

No. 7247.

Supreme Court of Texas.

June 23, 1937.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. L. Kennedy and others against the American National Insurance Company. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals [101 S.W.(2d) 825], and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed in so far as it reverses trial court's judgment, and reversed as to rendition, and cause remanded for new trial.

Nat L. Hardy, T. M. West, Joe Dickson, and C. S. Arnold, all of San Antonio, and Leroy H. Buss, of Donna, for plaintiffs in error.

Lorimer, Brown & Davis, of Harlingen, for defendant in error.

MARTIN, Commissioner.

The parties will carry here their trial court designation.

Plaintiffs recovered judgment against defendant as the result of an automobile collision. That judgment was reversed and rendered by the Court of Civil Appeals. See American National Insurance Company v. Kennedy, 101 S.W.(2d) 825, where the facts are fully stated.

We agree in part with the conclusion reached by the Court of Civil Appeals, and write in the hope that we may be able to clarify, in some degree, a subject involved in considerable confusion. The evidence in this case went no further than to show that Wilson, an agency inspector of defendant insurance company, working for a salary while traveling in his own car on a journey from one town to another to keep an appointment having to do with company business, negligently injured the plaintiffs in an automobile collision. It is not claimed that there is any evidence of an express authority from the insurance company to its agent to use such car in his work, nor are we cited to evidence which raised any issue of implied authority for its use, nor can we find in the record any fact or circumstance from which an inference can be drawn that the work of the agent was inherently such as to make the use of an automobile a thing necessarily contemplated by the parties as part of the contract of employment of the agent.

This case was apparently tried and disposed of in the trial court upon the theory that liability of the insurance company was established upon proof only that its salaried agent traveling in his own car from one town to another on company business, negligently ran into another car with his own.

There are pointed expressions in a few cases, and particularly in the case of Guitar v. Wheeler (Tex.Civ.App.) 36 S.W. (2d) 325, 331, that justified the trial court in so concluding. It was said in this case:

"We think it immaterial under the facts here that the automobile, driven by Tidwell at the time of the accident, belonged to Tidwell, if he was using it in the performance of a duty he owed his employers. The ownership of the automobile is simply an incident in the performance of his service; the thing done by the servant in the performance of a duty to his master is the ultimate act, and not the instrument with which he performs the duty that makes the master liable."

This is not believed to be an accurate statement of the rule, for the reasons hereafter given.

The Supreme Court of Tennessee recently referred to three Texas opinions in the following language:

"Counsel for plaintiffs rely upon Texas Power & Light Co. v. Denson, 45 S.W. (2d) 1001, Buick Automobile Co. v. Weaver, 163 S.W. 594, and Guitar v. Wheeler, 36 S.W.(2d) 325, being cases decided by the Texas Court of Civil Appeals. These decisions, however, are not in accord with the great weight of authority with respect to the rule that it must be shown that the use by the servant of his own car was expressly or impliedly authorized by the master, before the master can be held liable for the negligence of the servant in the operation of the car." Tucker v. Home Stores Inc., 170 Tenn. 23, 91 S.W.(2d) 296, 297.

There was ample evidence in the Denson Case, supra, to support the inference that the servant's use of his own automobile was impliedly authorized by the master. This was recognized by both the Court of Civil Appeals and the Commission of Appeals. See Texas Power & Light Co. v. Denson, 125 Tex. 383, 81 S. W.(2d) 36. However, we will not turn aside here to attempt to distinguish the Texas cases last mentioned from the present one. American Jurisprudence has stated the rule applicable here, which in our opinion correctly reflects the prevailing opinion of the American courts respecting the point under discussion. It is:

"The mere fact that an employee uses his own automobile in the business of the employer does not make the latter liable under the doctrine of respondeat superior for injuries inflicted by such employee in the operation of the automobile. If, however, the other circumstances involved in the case are consistent with, or require, the inference that the activity in which the servant was engaged at the time of the tort complained of, and in which he was using his own car or one which he had hired, was within the scope of his employment, the person injured may recover from the employer, if the servant's use of the automobile or other vehicle was authorized, either expressly or impliedly. Thus if an employee, with the knowledge and assent of the employer, repeatedly uses an automobile, not owned by the employer, in the latter's business, the employer will be held to have impliedly authorized its use and to be liable for negligence in connection therewith, but the mere fact that an automobile was used on one occasion, unaccompanied by any evidence of other similar acts, does not justify any inference that the employee was later authorized to use the machine upon the employer's business. The employer is not liable where the use of the automobile or other vehicle operated by the employee is not expressly or impliedly authorized by the employer, and he exercises no control over its operation. He cannot be held liable under the doctrine of respondeat superior for personal injuries inflicted by an employee while engaged in unnecessarily driving his own automobile upon the master's business, without the latter's knowledge or express or implied authorization." 5 American Jurisprudence, pp. 728, 729, par. 393. (Italics ours.)

As more pointedly showing the attitude of our courts, we quote from a few of the many cases upon the subject.

From Pennsylvania:

"To hold a master legally responsible for the act of a servant who is engaged in furthering his master's business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter's actual or potential control of it at that time and place may reasonably be inferred. * * *

"`Negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct, nor participated therein, nor had the right or power to control it.'" John Wesolowski, Jr., et al. v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 A. 166, 167, 87 A.L.R. p. 783.

Tennessee:

"The use of the automobile by Wright in going to the bank for change was not authorized by the company, either expressly or impliedly. So far as the record discloses, none of the officers of the company knew that Wright owned an automobile. While Wright had gone to the bank on several prior occasions in his automobile for change, it is not shown that the company had any knowledge of such fact.

"The rule, supported by the great weight of authority, is that unless it be shown that the use by the servant of his own automobile was expressly or impliedly authorized by the master, the master cannot be held liable for the torts of the servant committed in the use of the...