Kulms v. Jenkins

• Decision Date: 11 October 1977
• Docket Number: No. 8815,8815
• Citation: 557 S.W.2d 149
• Parties: Billy KULMS and Everett Butler v. Marvin JENKINS.
• Court: Texas Court of Appeals

Page 149

557 S.W.2d 149

Billy KULMS and Everett Butler v. Marvin JENKINS.

No. 8815.

Court of Civil Appeals of Texas, Amarillo.

Oct. 11, 1977 Appellants Rehearing Denied Nov. 7, 1977 Appellee's Rehearing Denied Nov. 7, 1977.

Gardere, Porter & DeHay, Douglas A. Harrison, Dallas, for appellants.

Maner, Nelson, Jones & Reaud, Inc., Loyd N. Jones, Lubbock, for appellee.

REYNOLDS, Justice.

Plaintiff Marvin Jenkins recovered a judgment for damages resulting from an intersection collision between his vehicle and one operated by defendant Billy Kulms and owned by his employer, defendant Everett Butler. Without challenging jury answers establishing that Kulms was, but Jenkins was not, guilty of negligence proximately causing the collision, Kulms and Butler seek to reverse the judgment. Their theories are that there is a lack of the prescribed evidential support for the issue of the scope of Kulms' employment and for some elements of Jenkins' damages, and that prejudicial evidence concerning a criminal complaint filed against Kulms was adduced before the jury. Eliminating the award for medical expenses not shown to have been necessarily incurred as a result of the collision, we find no reversible error attending the rendition of the judgment. Reformed and affirmed.

In response to the first special issue, the jury found that at the time of the collision Kulms was engaged in the service of Butler and in the furtherance of his business. Both the submission of and the answer to the issue are subjected to "no evidence" points of error, and the answer is also attacked by a factually insufficient evidence point. A statement properly positions the points.

Butler employed Kulms for general farm work. Kulms was paid a weekly wage without any deduction being made for work time lost due to adverse weather. Sometimes, so Butler said, he furnished Kulms a pickup truck to travel to and from work and in looking after Butler's farm. Due to wet weather, Kulms had not done any work on the farm on either one day or two days prior to the collision. Early on the morning of and before the collision, Kulms drove Butler's pickup, which Kulms said he had been driving for two years, from Kulms' home to a cafe where he normally met Butler's foreman to talk about work activities for the day. Although Kulms and the foreman had met at the cafe on the two preceding days, the foreman did not appear on the day of the collision. Kulms left the cafe, intending to drive to Butler's fields to see if the land was dry enough to work. The intersection collision occurred before Kulms reached the fields.

There is recorded in Butler's deposition, taken some nine and one-half months after the collision, the following:

Q Okay. Would it be your opinion that on the morning of the accident, that Mr. Kulms was in the course of his duties when this accident occurred?

A Yes.

Q And he was in the furtherance of your business affairs, whatever that was?

A Right.

Q He was taking care of your farm, whatever he was supposed to be doing, is that right?

A Right.

At the trial approximately twenty-eight months after the collision, Butler testified that Kulms had neither done any work for him on the morning of the accident nor, because it had rained, for two days before that time. Butler further said that at the time the accident occurred, Kulms was on his way to Butler's headquarters to see if he was supposed to work that day.

It was Kulms' trial testimony that he was working for Butler on the day of the accident. He further testified, however, that he was driving to work and had not done any work for Butler at the time of the collision.

For Butler to be liable for Kulms' negligent acts, it must be satisfactorily shown that those acts were within the scope of Kulms' general authority, in furtherance of Butler's business, and for the accomplishment of the object for which Kulms was employed. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057, 1059 (1940). Kulms' testimony that he was working for Butler on the day of the accident is a legal conclusion which has no probative value on the question of the course and scope of Kulms' employment at the time of the collision, Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 361 (Tex.1971); however, the evidence that Butler employed Kulms and furnished for use in his employment the pickup truck involved in the collision gave rise to the presumption that Kulms was acting within the course and scope of his employment when the collision occurred. Broaddus v. Long, supra, 138 S.W.2d at 1058. But, that presumption vanished when Kulms testified that he was driving to work and had not done any work for Butler at the time of the collision, Hudiburgh v. Palvic, 274 S.W.2d 94, 98 (Tex.Civ.App. Beaumont 1954, writ ref'd n. r. e.), and the rebutted presumption could not be treated as evidence by the jury in reaching its verdict. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 768 (1940). Consequently, if Butler was to be held liable, Jenkins had the burden of producing other evidence that Kulms was acting within the course and scope of his employment. Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex.Civ.App. Waco 1933, writ ref'd).

Jenkins points to the circumstances of Kulms' employment and particularly to Butler's deposition testimony as other evidence tending to establish the course and scope of Kulms' employment. Butler and Kulms respond that Butler's deposition testimony is nothing more than a legal conclusion and opinion which is not competent evidence to support the jury's affirmative finding. Cited to support the response are Robertson Tank Lines, Inc. v. Van Cleave, supra, and Kimbell Properties, Inc. v. McCoo, 545 S.W.2d 554 (Tex.Civ.App. Amarillo 1976, no writ). These cases hold that an employee's statement that he was "on the job" is without probative value to show the employee's course and scope of employment, but they are not controlling on the probative value of an employer's statements on the same subject.

Generally, the declarations of an agent are not admissible as primary evidence of the fact that he was acting within the scope of his employment, Webb-North Motor Co. v. Ross, 42 S.W.2d 1086, 1087 (Tex.Civ.App. Austin 1931, writ dism'd), but the rule does not operate to bar a principal's testimony, which is admissible, to prove the fact. Lightsey Black & White Cab Corporation v. Littlefield, 48 S.W.2d 766, 770 (Tex.Civ.App. Fort Worth 1932, writ ref'd). The admissions of a party of record are always receivable against him, C. McCormick and R. Ray, Texas Law of Evidence § 1161, as evidence of the facts stated. Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442, 445 (1952).

Thus, Butler's deposition testimony was admissible on the issue of Kulms' course and scope of employment. Nevertheless, Butler's deposition statements are only extra-judicial or quasi-judicial admissions which are not conclusive on him, Esteve Cotton Company v. Hancock, 539 S.W.2d 145, 157 (Tex.Civ.App. Amarillo 1976, writ ref'd n. r. e.), and, being inconsistent with his trial position, were subject to explanation or contradiction. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 655 (1952).

There...