M. K. Hall Co. v. Caballero
| Decision Date | 01 June 1962 |
| Docket Number | No. 3713,3713 |
| Citation | 358 S.W.2d 179 |
| Parties | M. K. HALL COMPANY, Appellant, v. Carlos CABALLERO, Appellee. |
| Court | Texas Court of Appeals |
Stafford, Atlas & Spillman, McAllen, for appellant.
Johnson, Hester, Jenkins & Toscano, Harlingen, for appellee.
Carlos Caballero filed suit against Johnnie Saunders and M. K. Hall Company, a partnership composed of M. K. Hall and Keith Hall, for personal injuries. The plaintiff's damages were alleged to have been sustained by him as a result of a collision between his car and the rear end of Hall's truck, which was parked on the paved portion of the highway at night without lights. Saunders was the truck driver.
The jury found that Saunders was acting within the course of his employment for Hall Company at the time of the collision; that Saunders was under the influence of intoxicating liquor at the time and that such condition was a proximate cause of the collision; that Saunders left his tractor-trailer standing on the paved part of the highway, and that this was negligence and a proximate cause of the collision, and that Saunders turned his lights off at night while parked on the highway, and that this was negligence and a proximate cause of the collision. Judgment was rendered for plaintiff for $10,941.95.
Saunders has not appealed. Hall Company has appealed contending the court erred in entering said judgment because (1) there was no evidence and insufficient evidence to support the submission of the course of employment issue (2) the jury's finding that Saunders was in the course of employment for Hall Company at the time of the collision is against the great weight and preponderance of the evidence (3) there is no evidence or insufficient evidence to support the submission of the issue of plaintiff's decrease in earning capacity and (4) that the jury's finding that the plaintiff's loss of earning capacity was $6,500.00, is against the great weight and preponderance of the evidence. The appellant also contends the court erred in excluding the testimony of Salvador Borreago relative to the damage issue.
Saunders was employed by appellant to haul grain from Portales, New Mexico to purchasers in Texas, New Mexico and California. These deliveries were arranged so that Saunders would haul produce on his return trip to Oklahoma. From Oklahoma, Saunders would return to Portales. Saunders ordinarily made two round trips every seven days.
When Saunders was dispatched with a load of grain on this trip, he was instructed to deliver it to Whitenberg at Alamo, Texas. He was told the day he was to pick up the produce after unloading the grain. He was to deliver the produce within a reasonable time and return to Portales. After Saunders left Portales on this trip, he was not under orders from Hall to report to the home office unless he had trouble. Saunders was to use his own judgment as to the details of his route and times for loading and unloading. He decided how fast to drive and where he would eat and sleep and all other details of his trip. He was furnished expense money before each trip.
On this particular trip Saunders picked up a load of milo at Lariat, Texas. He returned to Portales and had his truck serviced. He left Portales on a Saturday evening about 7:00 o'clock. He arrived at Alamo and delivered the grain on the following Monday morning. While they were unloading the milo, Saunders disconnected the tractor and took it to the Truck Service Center at Pharr for repairs.
He drank beer while his truck was being repaired. While he was at the Do Drop Inn, he called a girl friend and she met him at the tavern. They had a beer and she left. He went back to the garage and waited until the repairs on his truck were completed. After he had done some checking on the grain, and weighed his truck, he returned to Pharr and picked up his girl friend. He was due to pick up a load of lettuce at Weslaco at about 8:00 or 9:00 o'clock that evening. He was unable to get his truck washed out at Pharr and decided he would have it washed at some station on his way to Weslaco. He called the shipper at Weslaco and informed him that he might be late. The shipper instructed him to be there before midnight. So, with his dirty trailer bed and his girl friend, Saunders headed for Weslaco. Saunders testified he asked his girl friend to ride with him to Weslaco where he was to receive a load of lettuce. She was going along just for the ride. He stopped at a service station between Donna and Alamo and was unable to get his truck washed. He stopped at another station near Weslaco and was unable to get service. He was also unable to get service at the ice house at Mercedes. The record reveals that Mercedes is east of Weslaco and Weslaco is east of Pharr. Saunders testified that he thought about turning around but decided to go to Dooley's Truck Stop in Harlingen. Harlingen is east of Mercedes. While on his way to Dooley's Truck Stop, he saw two trucks parked at a drive-in and stopped and inquired about a place where he could get service. They informed him the only place that they knew was in Harlingen. At this drive-in Saunders picked up some cigarettes and two bottles of beer. He gave one to his girl friend. Saunders and his girl friend also drank some whiskey. He stated, in his opinion, she was intoxicated. Soon thereafter, his girl friend asked him to stop so that she could relieve herself. He stopped the truck and she got out and he scooted down in the seat and went to sleep. Saunders testified that some time after he dozed off, someone started pounding on the side of his truck and admonished him to move his truck off the road. Soon thereafter, the plaintiff's car ran into the rear end of his trailer.
L. S. Hall, Hall Company's manager, testified that Saunders was authorized to have the truck washed and pay for it out of his expense funds; that washing out the trailer bed was customary before picking up eatables, such as lettuce. He further testified, in effect, that when...
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...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. Theob......
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