Mundy v. Pirie-Slaughter Motor Co.

• Decision Date: 02 May 1947
• Docket Number: No. 14842.,14842.
• Citation: 202 S.W.2d 331
• Parties: MUNDY et al. v. PIRIE-SLAUGHTER MOTOR CO.
• Court: Texas Court of Appeals

Page 331

202 S.W.2d 331

MUNDY et al. v. PIRIE-SLAUGHTER MOTOR CO.

No. 14842.

Court of Civil Appeals of Texas. Fort Worth.

May 2, 1947.

Rehearing Denied May 30, 1947.

Appeal from District Court, Tarrant County; Thomas J. Renfro, Judge.

Action by J. E. Mundy against the Pirie-Slaughter Motor Company for property damages and personal injuries sustained in a collision between defendant's automobile and plaintiff's tractor, in which the State Highway Department, plaintiff's employer, filed an intervention to recover an amount paid plaintiff as compensation for such injuries. Judgment for defendant, and plaintiff appeals.

Affirmed.

Clark, Craik, Burns & Weddell, of Fort Worth, for appellant J. E. Mundy.

Price Daniel, Atty. Gen., and Charles E. Crenshaw, Asst. Atty. Gen., for appellant, State of Texas.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellee.

HALL, Justice.

Appellant J. E. Mundy, a Texas State Highway employee, sued appellee Pirie-Slaughter Motor Company, a corporation, in the 96th District Court of Tarrant County, Texas, for property damages and personal injuries sustained when the automobile of appellee, driven by its employee, James Oscar Dixon, a colored boy 18 years of age, struck the rear of appellant's tractor while appellant was mowing grass on the shoulder and bar ditch of Highway 80 between the cities of Fort Worth and Dallas in Tarrant County, Texas. The State Highway Department filed its intervention to recover the sum of $3305.41 it had paid appellant Mundy for compensation. Appellee filed exceptions to plaintiff's petition and specifically denied, among other things, that Dixon was driving the car with consent or knowledge of appellee; that he was hired to do work other than to drive an automobile; that he was doing no act at the time of the collision to further the best interest or affairs of the appellee; that he was merely off on a lark of his own, etc.

The case was tried before a jury and after its failure to answer all of the issues submitted, the court discharged the jury and after a hearing, wherein all parties were present, entered judgment for appellee, upon the court's opinion that appellee's motion for instructed verdict should have been granted. From this adverse judgment appellant perfected this appeal, based upon 6 points of error. The first, second and third points are based on the proposition that the trial court erred in sustaining appellee's motion for judgment because there was evidence sufficient to raise an issue of fact for the jury as to the negligence of appellee in permitting its employee to have the use of one of its automobiles during the noon hour and to drive the same upon and over congested streets and public highways when the said employee was a young inexperienced, reckless, incompetent negro boy; the negligence of the appellee in not keeping watch and proper lookout to prevent its employees, who were young, incompetent and inexperienced negro boys, from taking and driving its automobiles from its premises, and in failing to keep locked its automobiles located on its used car lot.

For the purpose of this appeal, we shall consider the evidence sufficient to establish the fact that appellee, through its proper officers, knew, or by the exercise of ordinary care and reasonable prudence should have known, that the employee Dixon was driving the car to lunch each day, there being evidence in the record to that effect.

The two ultimate questions for this court to decide, which are raised by the first three points of error, are: (1) Was there sufficient evidence offered to present an issue of fact as to whether appellee's employee Dixon was an inexperienced, incompetent or reckless driver.

(2) Whether such a fact, if true, was known by the proper officers of appellee. Appellant relies upon the testimony of Z. T. Slaughter, President of appellee corporation, now deceased, to substantiate these two points, wherein he testified in his oral deposition as follows:

"Q. Do you consider those boys competent to drive a car? A. I didn't think so at the time, and very few of these colored boys you do hire—there is none of them that I am willing to let get out in my cars."

While appellant treats the first seven words of this answer, to-wit, "I didn't think so at the time," as composing an abstract statement, in effect, that the President of the Company did not think that Dixon...