McNeal v. Home Ins. Co., 10543.

• Decision Date: 09 December 1937
• Docket Number: No. 10543.,10543.
• Citation: McNeal v. Home Ins. Co., 112 S.W.2d 339 (Tex. App. 1937)
• Parties: McNEAL et al. v. HOME INS. CO. et al.
• Court: Texas Court of Appeals

112 S.W.2d 339

McNEAL et al. v. HOME INS. CO. et al.

No. 10543.

Court of Civil Appeals of Texas. Galveston.

December 9, 1937.

Rehearing Denied January 6, 1938.

Appeal from District Court, Wharton County; M. S. Munson, Judge.

Suit by Osa McNeal and others against the Home Insurance Company and others for the death of Clarence Clifford McNeal sustained in an automobile collision allegedly caused through the negligence of the named defendant's servant while acting within the course of his employment. From a judgment for the named defendant, the plaintiff appeals.

Affirmed.

Cline & Cline, of Wharton, for appellants.

Battaile, Burr & Holliday and Troy Stokes, all of Houston, and R. A. Bassett, of Richmond, for appellees.

GRAVES, Justice.

This suit was one by Mrs. McNeal, acting for herself and other members of her family, for damages for the death of her husband, Clarence Clifford McNeal, from the collision of two automobiles going in opposite directions, alleged to have been caused by the negligence of the insurance company's servant while acting within the course of his employment for it. From an instructed verdict in favor of the insurance company, directed at the close of her testimony, Mrs. McNeal has appealed.

In view of the fact that all the contributing facts and circumstances appear to have been undisputed, it is thought that the single question presented on the appeal may be thus stated:

Did the testimony in the record justify the trial judge in so directing the verdict against the appellants, upon the theory that the evidence conclusively showed the appellee's servant, Joe Cummings, not to be acting within the scope of his employment for it at the time the appellant's husband, Clarence Clifford McNeal, met his death as a result of the auto collision in question?

Preliminarily to recitation of the testimony, this much of the underlying situation, just referred to as having been undisputed, may be given: (1) Joe Cummings was the agent of the appellee company, and was one among the three people killed in the accident including McNeal; (2) that the automobile in which Cummings was riding at the time of the collision was the appellee's property; (3) that when the accident occurred, Rogers Cypert, a 15 year old boy, was operating that car; (4) that he was negligently operating the car at the time and on the occasion of the accident.

What is thought to be a correct and sufficient résumé of the material testimony bearing upon the single question stated, supra, is thus taken from the appellees' brief:

"The plaintiffs introduced as a witness Rogers Cypert, Jr., a boy fifteen years old living in Bay City who had known Joe Cummings about a month and a half before the accident in question, having met him in Wharton at Lewis' Barbecue Stand. Cypert did not see Cummings again until Cummings came out to the Cotton Wood Inn (a night club) about 9:30 p. m. alone. There he contacted the young Cypert boy who introduced him to some of the boys and girls present at the inn. From that time on, Cypert and Cummings were together practically all the time until Cummings was killed in the accident to plaintiff's deceased husband. Cummings had a pint bottle of sloe gin with about a drink and half in it on arriving at the Cotton Wood Inn. After spending about an hour at Cotton Wood Inn, Doris Gordon and a girl whose last name was Rice, Joe Cummings and Roger Cypert went to Bay City in the car driven by Cummings to get some more sloe gin. After which they returned to Cotton Wood Inn. Cummings asked the Cypert boy if he wanted to go some place and he replied that he did not care if he rode around awhile. Cummings then asked the Cypert boy, `Do you know any girls we can get to go with us?' to which the Cypert boy replied, `We can ride by and get my sister and go some place and dance.' Cummings and the Rice Girl and Cypert then left the Cotton Wood Inn and went to Boling, which is about 10 miles from the Cotton Wood Inn. The Cypert boy's sister, Laverne, was working at a cafe at Boling right down in the heart of town. They arrived in Boling somewhere in the neighborhood of twelve or one o'clock. Cypert's sister was still working when they arrived, because the cafe did not close until 1:30 or 2:00. About 1:30 or 2:00 in the morning they left there, after getting Cypert's sister to join them. As to the activities in Boling the Cypert boy says: `As to what we did in Boling while we were waiting around for my sister, Mr. Cummings and this Rice girl never got out of the automobile at all. I went in the stand and I then bought some cigarettes and maybe drank a bottle of beer. I really and truly won't say whether we bought some liquor in Boling or not. I don't know.' From Boling the party went to Wharton and drove to an Humble filling station and was informed by a boy working there that there had been a bad wreck on the other side of Hungerford at the Kendleton bridge. They decided to go and see that. As to whether or not the party purchased any liquor at Boling, the Cypert boy says as follows, `We did not get anything to drink at Boling; I think we had some of the sloe gin. As to whether or not we got another bottle of liquor while at Boling, let me think a minute, and I will tell you in just a minute. I haven't thought anything about it. My best recollection is that we didn't buy any more whiskey after we left Bay City. We bought some sloe gin there; I won't say for sure.' Upon arriving at the Kendleton bridge they saw the place where the wreck had taken place but the wreck had already been taken away. It was about 2:30 a. m. From that point the party went to Rosenberg. Quoting from Cypert's testimony: `We did not have any liquor in Rosenberg. I believe we still had some of that whiskey; we had some sloe gin that we might have bought in Boling, I don't know.' At the R & L Cafe in Rosenberg the party danced until 3:30 or 4:00 a. m. At the cafe they had a mechanical piano and a victrola. They all danced and had some drinks there. They drank a bottle or two of beer. Joe Cummings didn't drive after the party left the Kendleton bridge. The Cypert boy took charge of the car at the Kendleton bridge and drove it until the party finally reached West Columbia. He was also driving when the accident occurred. When the party left Rosenberg between 3:30 and 4:00 a. m., they went to West Columbia by way of Needville and Damon, some 34 miles on the `hug-the-coast' highway. The party arrived at West Columbia to the best judgment of the witness, Cypert, about a quarter to five. Upon arriving at West Columbia, Joe Cummings drove Cypert and his sister, Laverne, to the Edward's Cafe and took the Rice girl home. The Cypert boy's sister, Laverne, drove off with ...