Nu-Way Oil Co. v. Trac-Work, Inc.

• Decision Date: 12 June 1980
• Docket Number: INC,NU-WAY,TRAC-WOR,No. 6174,6174
• Parties: OIL COMPANY, Appellant, v.et al., Appellees.
• Court: Texas Court of Appeals

Page 209

601 S.W.2d 209

NU-WAY OIL COMPANY, Appellant, v. TRAC-WORK, INC. et al., Appellees.

No. 6174.

Court of Civil Appeals of Texas, Waco.

June 12, 1980.

Rehearing Denied July 10, 1980.

Kenneth L. McAlister, Penner, Jones, Keith & Wagner, Fort Worth, for appellant.

J. W. Payne, David W. Townend, DeHay & Blanchard, Dallas, for appellees.

HALL, Justice.

Plaintiff Nu-Way Oil Company filed this suit against defendants David Wayne Johnson and Trac-Work, Inc., for $1,300.00 damages allegedly suffered by plaintiff when a truck driven by Johnson struck a gasoline pump and a sign located at plaintiff's service station in the City of Ennis on September 2, 1977. The case was tried to a jury on October 8, 1979. When plaintiff rested its case, defendant Trac-Work moved the court to withdraw the case from the jury and render judgment for defendants. The motion was granted, and judgment was rendered that plaintiff take nothing. Plaintiff brought this appeal.

Plaintiff alleged inter alia that on September 2, 1977, when defendant Johnson was driving a truck on Kaufman Street in the City of Ennis, he traveled off the street and collided with the gasoline pump and the sign on plaintiff's service station premises; that the truck was owned by defendant Trac-Work; that Johnson was an employee of Trac-Work and was within the course and scope of his employment at the time of the accident; that the accident and the resulting damages to plaintiff's property were proximately caused by the negligence of Johnson in traveling at an unreasonable speed, in driving his vehicle while intoxicated, in failing to apply his brakes in a timely fashion, in failing to keep a proper lookout, in failing to keep his vehicle under proper control, and in being "otherwise negligent"; and that the pump was damaged in the amount of $1,200.00, and the sign was damaged in the amount of $100.00. Plaintiff also alleged negligent causation against Trac-Work upon the ground that Trac-Work negligently entrusted the truck to Johnson under particularized circumstances.

Defendant Trac-Work answered with a general denial; specially denied that Johnson "was at the date, time and place in question its employee operating (the truck) within the course and scope of his employment"; and alleged that Johnson's operation of the truck was unauthorized by and without the permission of Trac-Work and "was at a time which would not place Johnson within the course and scope of employment for Trac-Work, Inc."

The record does not contain an answer by Johnson to plaintiff's suit. The judgment recites that he "never made an appearance herein."

The take-nothing judgment against plaintiff recites that it and the granting of Trac-Work's motion for judgment were based upon grounds set forth in the motion that the evidence was legally insufficient to raise fact questions for the jury on the issues (1) that Trac-Work negligently entrusted the vehicle to Johnson, (2) that Johnson was negligent, and (3) that Johnson was driving the truck within the course and scope of employment with Trac-Work. Plaintiff assigns error to all of those conclusions.

We concur with the trial court's holding that the evidence was legally insufficient to raise the issue of negligent entrustment. However, we believe and hold that the testimony of Trac-Work's president was inferentially sufficient to establish that the truck in question was owned by Trac-Work, and that Johnson was Trac-Work's employee and was driving the truck when it struck plaintiff's gasoline pump. Proof that the vehicle involved in an accident was owned by the defendant and that the driver was in the employment of defendant raises the presumption that the driver was acting within the scope of his employment when the accident occurred. Robertson Tank Lines, Inc. v. Van Cleave, (Tex.1971) 468 S.W.2d 354, 357. However, the presumption based solely upon those facts vanishes where there is other evidence showing that the driver was not acting within the scope of his employment. Id. In our case, we disagree with Trac-Work's contention that there is such other evidence. Nevertheless, we do agree with Trac-Work that there was no evidence that Johnson was negligent which was admissible against Trac-Work.

The only evidence related to the circumstances of the accident and Johnson's negligence was the following testimony of the investigating police officer: "Q. When you arrived at the scene, could you briefly describe to the jury what you saw? A. Oh, a truck had hit a car from the rear there at the light and that car in turn had hit another car and then the truck had veered to the left and knocked a gas pump down at the service station. Q. What else did you observe at that time? A. The subject that was driving the truck had left the scene. However, it a citizen had brought him back and had seen him run and they went and got him and brought him back and this was David Wayne Johnson. Q. And did you talk to Mr. Johnson at the scene? A. Yes, sir. Q. Did you ask him for his driver's license? A. Yes, sir. Q. Did he produce them? A. No, sir. Q. Do you know why? A. He said he didn't have any. Q. Did you notice anything unusual about Mr. Johnson? A. Mr. Johnson had been drinking. It was my opinion that he wasn't drunk. Q. Did he explain to you what happened? A. Yes, sir. He told me that he had borrowed the truck from the company that he worked for to carry some employees home and he was on his way back to the yard. He said he borrowed the truck and...