Martin v. Weaver

• Decision Date: 19 November 1941
• Docket Number: No. 4143.,4143.
• Citation: 161 S.W.2d 812
• Parties: MARTIN et al. v. WEAVER.
• Court: Texas Court of Appeals

161 S.W.2d 812

MARTIN et al. v. WEAVER.

No. 4143.

Court of Civil Appeals of Texas. El Paso, Texas.

November 19, 1941.

Rehearing Granted December 11, 1942.

Further Rehearing Denied January 8, 1942.

Appeal from District Court, El Paso County; David E. Mulcahy, Judge.

Action by O. L. Weaver against Jerome A. Martin and another for injuries sustained by plaintiff's wife while a passenger in defendants' taxicab. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

J. U. Sweeney, J. E. Quaid, and Potash & Cameron, all of El Paso, for appellants.

Joseph L. Dunigan and Lea & Edwards, all of El Paso, for appellee.

PRICE, Chief Justice.

This appeal is from the judgment of the District Court of El Paso County, Forty-first Judicial District. As plaintiff, O. L. Weaver sued Jerome A. Martin and 94 Transportation, Inc., a corporation, as defendants, to recover damages for personal injuries alleged to have been inflicted on his wife by the negligence of defendants.

For convenience O. L. Weaver will be hereafter designated as plaintiff, and defendant Jerome A. Martin as Martin, and the 94 Transportation, Inc., as Company.

Plaintiff alleged that on or about the 15th day of March, 1940, Martin and the Company jointly owned and operated a taxicab in the City of El Paso, Texas; that his wife, while a passenger therein, through the negligent operation thereof by the agents, servants or employees of said defendants, sustained severe personal injuries through a collision with another automobile which was then being driven by one Fuentes; that his wife was a passenger for hire in the said taxicab of said defendants. The petition charged various acts of negligence in the manner of the operation of the automobile in which plaintiff's wife was riding at the time of the collision.

Defendants answered separately. Defendant Company alleged the driver of the car in question was not in its employ, and that he was neither its agent nor representative on the occasion in question; that the automobile was owned by Martin, and the driver was in the employ of Martin; that it leases various small pieces of land in the City of El Paso, where it maintains telephones; that defendant Martin and others, for a consideration paid to it, stand their taxicabs on said lots, and that when a call comes for a taxicab, of the taxis then on the stand the one next in order for the call takes same; that it did not participate in the earnings of the taxis in carrying passengers.

It further said that in the event there was any liability against it by reason of the facts set forth in plaintiff's pleading, that Martin was the actual wrongdoer, and asks that in the event any judgment be rendered against it, for judgment over against Martin.

Defendant Martin pleaded that the driver of the taxi was not his employee; that he had no control over him on the occasion in question; that the taxi on the occasion in question was being operated by the Company, and under its direction and supervision; that at all times the Company had the right to hire and discharge the one operating the car in question, and that he had no right to control his acts on the occasion in question. He, likewise, prayed for judgment over against the Company in the event that he be held liable.

The Company filed an answer to the answer of Martin, which, in substance, is a special denial that the driver was in its employ.

The trial was before the court and a jury, submission on special issues. On the verdict returned the court rendered judgment in favor of plaintiff in the sum of $5,241.77 against the defendants. From this judgment each of the defendants has appealed.

The jury found that the taxi in question just before the collision was being operated at a rate of speed in excess of twenty miles an hour within the city limits of El Paso; that this was a proximate cause of the collision; further found the issues submitting discovered peril all in favor of plaintiff; that the taxi was operated at an excessive rate of speed, but that such operation at such excessive rate of speed did not constitute negligence.

In the main charge the court did not submit the relationship of defendants to each other in reference to the transportation of plaintiff's wife; did not submit the relationship of either defendant to the driver of the taxicab.

At the instance of Martin, the court submitted an issue as to whether the driver, at the time of the collision, was under the control and supervision of the Company, which was answered that he was; another, as to whether the Company had the right to employ and discharge the driver of the taxi, which was answered that it did have such right. On requested issues of defendant Martin, that he did not have the right to employ any driver for the taxis which meet the standards of the Company; further, that on the date of the accident the driver of the taxi was not in the employ of defendant Martin.

In entering judgment for plaintiff against each defendant, the court evidently assumed that the evidence, as a matter of law, established there was such a relationship between them that each was legally responsible for the negligent acts of the driver on the occasion in question.

Aside from the conclusion of the witnesses testifying, there was no substantial dispute among them. There was no dispute as to the respective relations of defendants to the driver of the taxi.

The Company was at all relevant times engaged in business in the City of El Paso, Texas. It had one principal taxicab station in the City, together with eight substations. The stations are operated by telephone, the various taxicabs being sent out by the dispatchers of the Company. A call coming in for a taxicab, the dispatcher calls on one of the operators of the taxicabs operating out of the station and sends him to serve the passenger. All of the cars operating out of the various stations have signs on them, "94 Taxi;" the Company requires all chauffeurs operating cars out of its stations to wear uniforms; on the cab is the insignia "94." The driver of the car in question in this case was employed by the manager of the Company to operate Martin's car. Drivers operating cars were required by the Company to be approved by them. It does not own the motor vehicles operating out of its stands under the direction of its dispatchers. Defendant Martin owned some seven or eight automobiles operating out of the stands maintained by the Company. The car involved here was owned by Martin. For the privilege of operating out of these stations, the driver made an initial payment of five dollars to the Company, thereafter paid one dollar per day out of the earnings of the car in transporting passengers for hire; twenty-five cents of the one dollar went to augment the five dollars until same reached fifty dollars. When fifty dollars was reached, the twenty-five cent charge was discontinued. This fifty dollar fund was used for repairs on the car if same were necessary. The driver collected all fares from the passengers. Out of the money collected he paid the one dollar per day mentioned to the Company. The driver then paid the expenses from the fares received from the operation of the car, the balance remaining was divided in accordance with an agreement between the owner of the car and the driver. At the time of the accident some thirty-seven taxicabs were operating out of the various stations of the Company. None of these cabs were owned by the Company; some seven or eight were owned by defendant Martin, and the balance by others. All save one owning cars operating out of the station were stockholders in the Company.

Martin's brief sets forth some sixteen points as showing that the judgment against him should be either reversed and rendered in his favor or reversed and remanded. The Company adopts the brief of Martin as to points nine to sixteen, and filed no further brief herein.

Martin's first eight points may be summarized by stating that he takes the position that under the pleadings, evidence and verdict there was no basis for the judgment against him. The basis of this contention is that the jury found that the driver of the taxicab was not in his employ, not under his supervision and control; that the jury likewise found that the Company had the right to employ and discharge the driver.

The plaintiff, on the other hand, takes the position that Martin and the Company were engaged as joint adventurers in the common enterprise; that is, the transportation of passengers by motor vehicle in the City of El Paso, Texas; that each was legally responsible for the negligent act of the driver of the taxicab in which plaintiff's wife was riding at the time of her injury.

Under the undisputed testimony someone owed the duty of a carrier for hire to plaintiff's wife. The parties involved in her transportation were Martin, the Company, and the taxi driver, Cruger. Plaintiff's wife called the Company over its phone. It directed the taxi driver Cruger to respond to the call. The taxi driver did respond to the call in a car owned by Martin; the car had been placed on the stand of the Company by defendant Martin; Martin paid for the privilege of keeping his car on the stand out of the proceeds arising from transportation of passengers; Martin and Cruger jointly shared in the net profits arising from the operation of the car.

That there was such a relationship between plaintiff's wife and the Company is clear and unquestioned on this appeal; it clearly and indisputably appears that it held itself out as such carrier. We can make no other construction of the jury's finding than that Cruger was its employee. The findings were that it had control and supervision over him and the right to employ and discharge him; that Cruger was not the employee of Martin.

In the assignments under consideration the relationship of Martin to the driver is a vital question. Martin entrusted his automobile to the Company,...