McKeage v. Morris & Co.

• Decision Date: 30 October 1924
• Docket Number: (No. 95.)
• Citation: 265 S.W. 1059
• Parties: McKEAGE et al. v. MORRIS & CO.
• Court: Texas Court of Appeals

265 S.W. 1059

McKEAGE et al. v. MORRIS & CO.

(No. 95.)

Court of Civil Appeals of Texas. Waco.

October 30, 1924.

Rehearing Denied November 20, 1924.

Error from District Court, McLennan County; H. M. Richey, Judge.

Action by Mrs. Ola McKeage and husband against Morris & Co. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

Witt, Terrell & Witt, and Horace Trippet, all of Waco, for plaintiffs in error.

Erwin J. Clark, of Houston, for defendant in error.

BARCUS, J.

Plaintiffs in error, Mrs. Ola McKeage and husband, brought this suit against defendant in error, alleging that plaintiff in error Mrs. McKeage was seriously injured by an automobile which was negligently operated by one of the defendant's duly authorized agents and employees, acting within the scope of his employment at the time of the injury. The negligence complained of was that the automobile was operated at a high and dangerous rate of speed, failure to sound the gong or horn, failure to keep a proper lookout, and failure to have the lights on said car burning; the injury having been inflicted at nighttime on one of the busy thoroughfares in the city of Waco.

The defendant answered by a general demurrer, general denial, and a special plea that at the time of the injury the driver of the automobile was not engaged in any business of defendant and was not acting within the scope of his employment; and alleged contributory negligence and other defensive matters not necessary to state here. At the conclusion of plaintiffs' testimony the court instructed the jury to return a verdict for defendant, and it is from the instructed verdict this appeal is perfected.

It is unquestionably true that the testimony of the plaintiffs raised the issue of negligence on the part of the driver of the automobile at the time the injury was inflicted, and also as to the extent of the injuries to Mrs. McKeage. The only question necessary to be determined is as to whether at the time of the injury the driver of the automobile was in the employ of the defendant and engaged in its business or engaged within the scope of his employment. On this question the facts are briefly:

W. H. Wishmeier was employed by defendant as a salesman. Three days each week he used the automobile of defendant and sold meat for it in the territory surrounding Waco. Wishmeier used the automobile on Mondays, Tuesdays, and Wednesdays of each week, and if he returned to Waco at night he was instructed by defendant's manager to come by the office, and then, before going home, to carry the car to the Clay Francis garage in Waco for storage during the night, and his day's work was ended when he had so stored the car. Wishmeier was instructed that if the car needed any little repair while he was out on the road to have it done, and, if same needed repairing after it reached Waco, he was authorized by defendant to take the car either to Goodhue Smith's repair shop or to the Clay Francis repair shop. Several months before the injury Wishmeier had carried the car home with him a few different nights by permission of the former manager of defendant. The injury occurred on Wednesday, about 8 o'clock at night, November 3, 1920. On that day Wishmeier had been on his run to the country towns. He reached Waco about 6:30 or 7 o'clock in the evening, and reported at the office of defendant that he had a ball bearing burned out. When he reached the office the manager had gone home for the night, and some one in the office told Wishmeier to take the car to the Goodhue Smith Garage and leave it there for repairs. Mr. Loftin, the manager for defendant, testified that under his instructions Wishmeier could have taken the car either to the Clay Francis or Goodhue Smith Garage to have same repaired. The Goodhue Smith Garage was on...