McCombs v. Stewart

• Decision Date: 03 June 1938
• Docket Number: No. 1810.,1810.
• Parties: McCOMBS et al. v. STEWART et al.
• Court: Texas Court of Appeals

117 S.W.2d 869

McCOMBS et al. v. STEWART et al.

No. 1810.

Court of Civil Appeals of Texas. Eastland.

June 3, 1938.

Appeal from District Court, Howard County; Chas. L. Klapproth, Judge.

Action by Mary Lou McCombs and another against Clayton Stewart and others to recover for the death of the named plaintiff's husband and for injuries sustained by the named plaintiff's minor daughter in an automobile collision. Judgment on an instructed verdict in favor of defendants, and plaintiffs appeal.

Affirmed.

W. W. Farmer, Jr., of Graham, and Thomas & McDonald, of Big Spring, for appellants.

Sullivan & Sullivan, of Big Spring, for appellees.

LESLIE, Chief Justice.

Mary Lou McCombs, for herself, and as next friend for her daughter, Johnnie Lou McCombs, instituted this suit against Clayton Stewart and Garland Sanders to recover damages for personal injuries sustained by themselves and for the death of John McCombs, the husband of Mary Lou McCombs, and the father of Johnnie Lou McCombs, alleging such injuries and death to be the proximate result of negligent acts of the defendants and their servants in causing a collision of a truck with a car in which plaintiffs were driving. The defendant Stewart answered by general demurrer, general denial, and specially alleged as a matter of defense that Clifton Sanders, the driver of the truck at the time of its collision with plaintiffs' car, was an independent contractor, and that he, Stewart, exercised no control or management over him, or any of his employees. Defendant Sanders adopted the pleadings of Stewart.

Plaintiffs replied by general denial, and, in the alternative alleged, that if a contract existed between Clayton Stewart on the one hand, and Garland Sanders and Clifton Sanders, or either, on the other, such as to render the theory of master and servant unavailable to plaintiffs as a ground of recovery, that nevertheless said Stewart and the Sanders brothers entered into a contract in violation of positive law in that it contemplated that said independent contractor or contractors were to transport a load of cattle in excess of 7,000 pounds in weight over the public highway and by common carrier points, etc.

The trial was before the court and jury and at the conclusion of the testimony a verdict was instructed in favor of the defendants. From a judgment thereon this appeal is prosecuted.

On or about July 21, 1936, Clayton Stewart, a ranchman, telephoned defendant Garland Sanders with a view of employing him, as he had theretofore done, to transport two truck loads of cattle from his ranch in Borden County to the market at Fort Worth, Texas. Garland Sanders answering the phone informed Stewart that he was not then in the trucking business and had theretofore sold his trucks to his brother, Clifton Sanders. Garland Sanders immediately communicated to his brother Clifton Sanders the fact that Stewart desired to make said shipment of cattle. In response to these communications Clifton Sanders and a man by the name of Page showed up the next morning at Stewart's ranch and loaded their trucks with the cattle which they contracted with Stewart to carry to their destination at Fort Worth, Texas, for the sum of $30 per truck load.

Preparatory to the shipment, Clayton Stewart had the cattle gathered into the corral and was present "seeing them loaded" making some suggestions relative to minor details preparatory to getting the stock in transit. In this connection he stated to them that if there were too many cattle for the two loads to cut some back.

Neither Stewart nor Garland Sanders went with him in the truck, and, according to the testimony, Garland Sanders had no more to do with the shipment of the cattle than that above indicated. It would seem to be unnecessary to discuss further the personal liability, if any, of Garland Sanders, and the court committed no error in instructing a verdict in his favor.

As to the liability of Clayton Stewart, the plaintiffs' main contention predicates the right to recovery in this suit upon the principle involved in the relation of master and servant. That in undertaking to transport and deliver the load of cattle to the designated commission merchant at Fort Worth, the Sanders brothers were merely servants of said Stewart, the owner of the cattle, and that he was liable for the injuries proximately caused by the alleged negligence of the Sanders brothers, or either of them.

If Stewart is to be held liable upon such theory, then the testimony must bring him within the definition of "master" as that term is construed and defined by the authorities in this State. In Smith Bros. Inc. v. O'Bryan, 127 Tex. 439, 94 S. W.2d 145, our Supreme Court quotes with approval from Cunningham v. International Railroad Co., 51 Tex. 503, 32 Am.Rep. 632, the following definition of master (94 S.W.2d page 148): "He is deemed the `master' who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details." The same opinion (Smith Bros. v. O'Bryan) also quotes from Shannon v. Western Ind. Co., Tex.Com.App., 257 S.W. 522, 523, the definition of the same term, taken from Street on Personal Injuries, reading as follows: "No better test can be applied than to say that the relation of master and servant exists where the master retains or exercises the power of control in directing, not merely the end sought to be accomplished by the employment of another, but as well the means and details of its accomplishment; `not only what shall be done, but how it shall be done.'" The language in which the principle or test is expressed varies somewhat in the different cases according to the peculiar facts and circumstances involved, but the principle is the same and the above definitions are believed to be correct and to have the express approval of the Supreme Court. They will be taken as a guide in...