Murray v. Pasotex Pipe Line Co.

• Decision Date: 20 May 1947
• Docket Number: No. 11862.,11862.
• Citation: 161 F.2d 5
• Parties: MURRAY v. PASOTEX PIPE LINE CO.
• Court: U.S. Court of Appeals — Fifth Circuit

161 F.2d 5 (1947)

MURRAY v. PASOTEX PIPE LINE CO.

No. 11862.

Circuit Court of Appeals, Fifth Circuit.

April 25, 1947.

Rehearing Denied May 20, 1947.

John J. Watts, of Odessa, Tex., for appellant.

J. F. Hulse, of El Paso, Tex., and William L. Kerr, of Midland, Tex., for appellee.

Before McCORD, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

C. C. Chenoweth, an employee of appellee, while under the influence of intoxicating liquor, drove appellee's truck over a seven-inch curb and thirty feet of sidewalk, through the wall of a hotel, and struck Minnie Lee Murray, wife of appellant, who was at the time in the building. In accord with Texas community property law, appellant filed this suit for damages for the injuries sustained by his wife. Appellant based his wife's claim against appellee upon three theories of negligence: (1) That Chenoweth's negligence was appellee's negligence, as he was on business for appellee at the time. (2) That the appellee was negligent in entrusting its truck to Chenoweth whom appellee knew or should have known to be a habitual drunkard. (3) That appellee was negligent in permitting the accelerator of the truck to become and remain defective. The trial judge, at the close of plaintiff's case, directed a verdict on the ground that the evidence was insufficient to sustain any one of the three theories of negligence. Appealing here, appellant insists that in so ruling the court erred. Our examination of the testimony convinces us that sufficient evidence existed for submission to the jury of the question of defendant's liability on the theory of the entrustment of a dangerous instrumentality to an incompetent. On the other grounds for the motion, we need not rule.

Chenoweth testified that he was a foreman gauger in the employ of the appellee and that his duties were that he should be "available for emergencies" twenty-four hours a day. During the preceding year he was furnished a company truck and often it was used by him for his "personal business". On the day in question he had driven from appellee's camp to the Post Office to get his personal mail and then to a liquor store so that he and a friend could purchase liquor for their personal use. On the return trip from the liquor store to the camp, the collision occurred. While he admitted he was under the influence of intoxicating liquor, he ascribed the cause of the collision to a defective accelerator.

L. E. Ing, who worked under Chenoweth, testified that Chenoweth's drinking was "a regular occasion"; that on one occasion at appellee's "station" Chenoweth was "drunk, crazy drunk"; and that when Ing told Norris, Chenoweth's superior, Chenoweth denied the charge of drunkenness, but Norris told Chenoweth, "Charley, I know your condition, you was too drunk." Ing also told Paret, Norris's superior, that he "did not care to stay to work under a man that stayed drunk all the time."

The Texas Court of Civil Appeals sets out the liability of the owner of a car for the damages resulting from the negligence of an incompetent driver to whom the owner entrusts the car, as follows:¹ "While an automobile is not inherently a dangerous instrumentality, and while the general rule prevails that its owner is liable for injuries resulting from negligence committed in the use of it by a servant or agent only under the maxim `respondent superior,' an exception to this rule of liability arises when he entrusts it to a person so lacking in competency and skill as to convert it into a dangerous instrumentality when used by such person, whose incompetency is known to the owner when he permits such person to use it. * * *"

The Supreme Court of Texas² has reaffirmed this doctrine in these words: "From the above it follows that this case comes within the rule, well established in this...