Mayhew v. McFarland, 7674.

• Decision Date: 18 June 1941
• Docket Number: No. 7674.,7674.
• Citation: 153 S.W.2d 428
• Parties: MAYHEW v. McFARLAND.
• Court: Texas Supreme Court

Page 428

153 S.W.2d 428

MAYHEW v. McFARLAND.

No. 7674.

Supreme Court of Texas.

June 18, 1941.

Motion for Rehearing Overruled July 23, 1941.

Mandate Conformed to September 5, 1941.

See 154 S.W.2d 214.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by Fred McFarland against P. E. Mayhew for damage done to a harvester while defendant was transporting it as a common carrier. On certified questions.

Certified questions answered.

Smith & Smith, of Anson, and Ewell H. Muse, Jr., of Austin, for appellant.

McCall & McCall, of Weatherford, for appellee.

SHARP, Justice.

This case is here on certified questions from the Court of Civil Appeals at Fort Worth. The controlling facts are as follows:

Fred McFarland, residing in Parker County, filed suit in the District Court of Parker County against P. E. Mayhew, alleged to be a resident citizen of Jones County, to recover damages done to a 16-foot combine harvester while Mayhew was engaged in transporting the same from McFarland's ranch in Parker County to his farm in Hale County. According to allegations in McFarland's original petition, Mayhew operated a truck, and was engaged in the business of carrying goods therein as a common carrier for hire from Parker County to other counties, including Hale County, in the State of Texas, and on the 21st day of June, 1930, in consideration of a reasonable and lawful compensation agreed to be paid to Mayhew by McFarland, the said Mayhew contracted and undertook to transport said combine harvester from McFarland's ranch in Parker County and deliver same to his farm in Hale County.

It is further alleged that Mayhew, after undertaking to so transport the machine failed to safely transport and deliver it to McFarland's farm in Hale County, but while it was in his possession near Wichita Falls, Texas, he damaged and injured said machine, and left and abandoned it on a lot in Wichita Falls, where McFarland later secured it. It was alleged that the machine was in good order and condition and of the reasonable value of $1,200 when delivered to Mayhew and McFarland sought recovery of $1,100 for damages to the machine and also for $50 for expense in carrying it back to his ranch in Parker County, and for $150 for rental of another machine and other incidental expenses.

Mayhew filed his plea of privilege to be sued in Jones County, the place of his residence, and said plea of privilege contained the statutory requirements. McFarland filed a controverting affidavit to the plea of privilege filed by Mayhew. The trial court heard testimony on the plea of privilege. McFarland testified to the employment of Mayhew to transport the machine; that he delivered it to him at his ranch in Parker County; that Mayhew abandoned it in Wichita Falls in an injured and damaged condition; that he recovered it later; and he also testified as to its value at the time its transportation was undertaken by Mayhew, and its value after damage and abandonment.

McFarland further testified that before his employment of Mayhew he had been told by Mr. Jordan, whom he had solicited to haul the machine, that it would be necessary to obtain from the State Highway Department a permit for that purpose, on account of the spread or width of the combine, and that whoever was to transport it would have to sign the application therefor in his own name, and no one else could sign for him. He then called Mayhew at Weatherford from Fort Worth over the telephone, and told him that he would have to come over to Fort Worth and himself get the permit from the Highway Department in that city. In response to that conversation, Mayhew came to Fort Worth, and upon his own application obtained the permit from the Highway Department of the State, and it is alleged that he then and there entered into the contract with McFarland to transport the combine from Parker County to Hale County.

While on the witness stand, McFarland testified with reference to the permit. He stated that it was an overload permit; that when you go above the 7000 pound limit you have to obtain a special permit to carry it. The permit in question allowed Mayhew to load the machine in Parker County, and the route was definitely stated and set out over which he should go from Weatherford. The route specified was from Weatherford to Mineral Wells, Jacksboro, Wichita Falls, Vernon, Plainview, Hale Center, and to his farm in Hale County. The permit called for Mayhew to load the combine at McFarland's ranch in Parker County and then to follow the route to McFarland's farm near Hale Center.

At this point counsel for Mayhew objected to the testimony of the witness McFarland as to the contents of the permit; and the objection was sustained by the court. According to the further testimony of McFarland, the permit was delivered to Mayhew, to whom it was issued, and he supposed that Mayhew still had it. Mayhew did not offer such permit in evidence or tender it to McFarland.

On cross examination by counsel for Mayhew, McFarland further testified that the permit called for some 13,000 or 14,000 pounds. They got a little extra weight in accordance with the law. He testified that he thought the factory weight of the combine was 11,500 pounds, and that the width of the machine when loaded on the truck was about 14 or 15 feet. McFarland also testified that in his discussion with Mayhew he, Mayhew, told him he had a permit issued by the Railroad Commission to carry freight any and everywhere, and was covered by insurance to carry freight; that he was also a licensed carrier, and that he had a right as a common carrier to transport the combine. He testified that he wanted to ascertain these facts from Mayhew before he made a contract with him to haul the combine; that later Mayhew called him over the telephone, and stated that he had hit the abutment of a bridge near Wichita Falls, and had injured the combine, and he also stated that he wanted to unload the machine at Wichita Falls. McFarland insisted on his delivering it to his farm in Hale County, as he had contracted to do. Mayhew said that the insurance company instructed him to leave it at Wichita Falls. McFarland also testified that he found his machine on a lot in Wichita Falls, and that it was badly damaged; that it was practically a total loss.

McFarland also introduced in evidence "Common Carrier Motor Carrier's Permanent Certificate of Convenience and Necessity," issued by the Railroad Commission of Texas, dated March 4, 1937, "authorizing the operation of a common carrier motor carrier," under the provisions of Article 911b, sections 2, 3, and 5, of the Vernon's Ann.Civ.St. He also introduced in evidence a certificate by the Railroad Commission, dated September 21, 1937, of identification of the motor truck he was authorized to operate. In both those instruments, however, the permit given to Mayhew was for "transporting road machinery from merchant to contractor at place of use and to nearest repair shop, and vice versa, and from job to job; box and street cars from storage to purchasers' locations," over certain designated routes.

Wayne Ellis testified for McFarland that he lived in Weatherford, Parker County, and was engaged in the business of hauling goods for hire, and that on one occasion during the year 1932 or 1933 Mayhew hauled some cattle for hire from Lonnie Parmer's ranch in Parker County to Fort Worth; that the witness Ellis understood at the time that Mayhew was a licensed carrier.

Waldon Jordan, another witness, testified...