Railway Exp. Agency v. Knebel

• Decision Date: 16 November 1949
• Docket Number: No. 4680,4680
• Citation: 226 S.W.2d 922
• Parties: RAILWAY EXPRESS AGENCY, Inc. v. KNEBEL et al.
• Court: Texas Court of Appeals

Page 922

226 S.W.2d 922

RAILWAY EXPRESS AGENCY, Inc. v. KNEBEL et al.

No. 4680.

Court of Civil Appeals of Texas, El Paso.

Nov. 16, 1949.

Rehearing Denied Dec. 21, 1949.

Trueheart, McMillan & Russell, San Antonio, for appellant.

Eskridge & Groce, San Antonio, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of the County Court at Law No. 2, of Bexar County. The case originated in the Justice Court, wherein Railway Express Agency, Inc., as plaintiff, recovered a judgment against defendants Sam Knebel and Curtis Kelley, jointly and severally, in the sum of $120.00. An appeal was taken from such judgment to the said County Court at Law No. 2, by defendant Knebel, and in a trial before the court judgment was rendered in favor of the appellant Railway Express Agency, against Curtis Kelley, but in favor of Knebel against the Railway Express Company, Inc.

A car owned by appellee Sam Knebel driven in a negligent manner by Curtis Kelley, collided with a parked car of appellant and substantial damage was inflicted to such car. As to defendant Kelley plaintiff alleged he was driving the car while intoxicated, driving on the left side of the street, failed to keep a proper lookout and did not have his car under proper control. As to defendant Knebel it was alleged that Knebel was the owner of the automobile driven by Kelley on the occasion in question; that Knebel entrusted the car to Kelley with the knowledge that Kelley did not have a driver's license; that Knebel was guilty of negligence in permitting Kelley to drive the automobile knowing that he had no lawful right to drive same.

As stated, the trail was to the court, without a jury. It was not demanded of the court that findings of fact and conclusions of law be filed.

There appears in the transcript an agreed statement of facts, under Rule 378 of the Texas Rules of Practice and Procedure. From the Statement of Facts it appears that on the date of the accident Knebel had in his employ as handyman at his home, the defendant Kelley. Knebel lived about four miles north of San Antonio and by direction of Knebel Kelley had driven several of Knebel's automobiles on errands. Knebel had in his employ at the time in question Kelley's aunt, a Negro woman named Myrtle. Knebel, at the conclusion of each day's work, customarily drove Myrtle and Kelley to Myrtle's home, located in San Antonio on San Pedro Avenue.

On the date in question Knebel directed Kelley to drive Myrtle to her home in Knebel's 1946 pickup truck. He specifically instructed Kelley to drive his truck to Myrtle's home, leave it there for the night, and use it to drive Myrtle and himself back to work the next morning. Driving the truck from Knebel's house to Myrtle's home did not require their going through the business districts of San Antonio, but only through the outskirts of the city. Kelley, in accordance with instructions from knebel, left Knebel's home on December 4th, 1947, at about 5:30 or 6:00 o'clock.

On December 4th, at about 11:55 P. M., while in an intoxicated condition, Kelley negligently drove said truck on the wrong side of the road and into plaintiff's truck while plaintiff's truck was parked at the curb, which negligence resulting from an intoxicated condition was the sole cause of such resultant damage to plaintiff's truck in the sum of $127.50. At the time of the accident there were three other Negroes besides Kelley in the truck. The accident occurred in the 200 block of North Medina Street, San Antonio, Bexar County, which is in the west part of the business district of San Antonio. At the time of the accident Kelley was not within the scope of his employment, nor the scope of the permission granted to use the truck, but was on a frolic of his own. At the time of the accident Kelley did not have a Texas driver's license. At the time Knebel entrusted the possession of the car to Kelley he knew that Kelley did not have such license. From the agreed Statement of Facts it appears that Kelley was not acting in the scope of...