McIver v. Gloria
| Decision Date | 24 June 1942 |
| Docket Number | No. 11114.,11114. |
| Parties | McIVER et al. v. GLORIA. |
| Court | Texas Court of Appeals |
Appeal from District Court, Live Oak County; W. G. Gayle, Judge.
Action by Inez Gloria against J. D. McIver, allegedly doing business under the trade-name of McIver Feed & Milling Company, and another, for injuries from an automobile collision. From a judgment for plaintiff, defendants appeal.
Affirmed.
O. Shelley Evans, of San Antonio, and Chas. E. Crenshaw, of Austin, for appellants.
Harry J. Schulz, of George West, for appellee.
This action for damages for personal injuries was brought by Inez Gloria against J. D. McIver, alleged to be doing business under the trade name of McIver Feed and Milling Company, and A. F. Ramos. Gloria alleged that he was injured in a collision between his automobile and a truck alleged to be owned by McIver and operated by Ramos. The jury found in favor of Gloria against both McIver and Ramos, who have appealed from the resulting judgment. In this opinion Gloria will be referred to as plaintiff and McIver as defendant.
Under his first proposition defendant complains that the court erred in overruling his motion for directed verdict, on the ground that there was no evidence, or that the evidence was not sufficient, to show that defendant owned the truck admittedly driven by Ramos, or that at the time of the accident Ramos was defendant's employee and was acting within the scope of that employment. The findings of the jury upon these points were based primarily upon admissions made by defendant to one Probst, to the effect that defendant was the owner of the truck, that Ramos was his employee, and at the time of the accident was on an errand for defendant; and upon defendant's admission to the hospital physician, who was treating plaintiff for his injuries, that defendant was the owner of the truck and had come to the hospital to see that the injured persons got everything they needed to take care of them. Defendant denied having made the statements attributed to him and testified that the truck was operated by Ramos, employed by McIver Feed and Milling Company, and that such company was owned by defendant's brother J. T. McIver, and that defendant had no propriety interest in that business; that he was only its manager. But defendant further testified that he was in complete control of the operation of the business; that he bought the trucks owned by the company as well as all the materials, supplies and commodities used by the company in the operation of its business; that he hires and fires all employees, sets the prices on the products it sells, is the boss and is "the owner when any one comes in and asks who is the owner"; that his brother J. T. McIver has been working exclusively for another concern for the last four years, and has no other source of income than from such employment and had received no income from McIver Feed and Milling Company during the last year; that defendant has a drawing account with the Feed and Milling Company, limited only by that company's ability to pay, which was about $150 per month, but takes what he has to have and sometimes more. Defendant put in evidence a certificate from the proper authority, that in November, 1936, five years before this suit was tried, his brother J. T. McIver executed and filed his registration under an assumed name in which he recited that he was doing business in San Antonio under the name of McIver Feed and Milling Company, and that he was the sole owner of that business. Without passing on its significance, we observe that in executing his appeal bond in this case defendant described himself as "J. D. McIver, d/b/a McIver Feed and Milling Company."
We are of the opinion that the testimony we have set out above raised the issue of ownership of that business and of the truck in question, and the jury having found against defendant upon the issue and the trial court having approved that finding by rendering judgment thereon, ...
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