Rankin v. Nash-Texas Co.

• Decision Date: 02 June 1934
• Docket Number: No. 11455.,11455.
• Parties: RANKIN et al. v. NASH-TEXAS CO. et al.
• Court: Texas Court of Appeals

73 S.W.2d 680

RANKIN et al. v. NASH-TEXAS CO. et al.

No. 11455.

Court of Civil Appeals of Texas. Dallas.

June 2, 1934.

Rehearing Denied July 6, 1934.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by Mrs. E. G. Rankin and husband against the Nash-Texas Company and another. From a judgment for defendants, plaintiffs appeal.

Affirmed.

See, also, 58 S.W.(2d) 902.

Callaway & Reed, Rollo E. Kidwell, and W. C. Scurry, all of Dallas, for appellants.

Leachman & Gardere, Gus M. Hodges, McCormick, Bromberg, Leftwich & Carrington, and W. C. Gowan, all of Dallas, for appellees.

BOND, Justice.

This suit was instituted by E. G. Rankin and wife against the Nash-Texas Company and F. L. Euless, in a district court of Dallas county, for damages for personal injuries alleged to have been sustained by Mrs. Rankin as the result of negligence of the driver of an automobile in which she was riding, and of the driver of an automobile owned by F. L. Euless, trailing immediately behind the Rankin automobile, causing a separate and distinct collision and injury, yet so connected in point of time with the collision of the Rankin automobile as to present a single action. The case was tried to a jury, and, at the conclusion of the testimony, the court sustained each of the defendants' (appellees) motions for instructed verdict, and entered judgment against the plaintiffs (appellants).

The case is before this court on appellants' contentions that the evidence is sufficient to raise issuable facts for the determination of the jury, in that the driver of the automobile in which Mrs. Rankin was riding was the agent of the Nash-Texas Company and, at the time of the collision, was engaged in the furtherance of its business and within the scope of the agent's employment, thus his negligence is imputable to his employer, the Nash-Texas Company, and that the driver of the Euless automobile, being a member of the Euless family, driving the family automobile, and trailing or following the Rankin automobile, ran into the back of it, thus establishing issuable facts of the driver's negligence, imputable to its owner, F. L. Euless.

It is conceded by appellees that, the evidence bearing on the issue of negligence of the driver of the Rankin automobile is sufficient to raise the question for the determination of the jury, and, in fact, the testimony is undisputed that the driver was guilty of actionable negligence. But the view we take on the issue as to the agency of the driver of the Rankin automobile and the weight of the testimony bearing on the negligent acts or omissions of the driver of the Euless automobile furnishes sufficient grounds for the affirmance of the case, and it becomes unnecessary to discuss any other question raised on appeal; they are expressly overruled.

It is shown by the evidence that Mrs. Rankin, a resident of Fort Worth, Tex., drove her automobile to Dallas, and, at one of the downtown street intersections, had trouble starting it. She telephoned to the Nash-Texas Company to come after her, which they did, and in the automobile drove her to its place of business. The company's mechanic examined the automobile, informed Mrs. Rankin of the nature of the trouble, and then Mrs. Rankin told the mechanic to make the necessary repairs, send her to her sister's home, and, when the car was ready, to telephone her at that place. The company sent her to the home as requested, and, on failing to telephone about the automobile being repaired, Mrs. Rankin, two hours later, telephoned to the company, and, in that conversation, she received the following message: "Mrs. Rankin, we will check it over and call you in a few minutes." At this juncture there had been nothing said between either of the parties as to the delivery of the automobile when repaired, or sending it for Mrs. Rankin to return her to the company's place, or the payment of the charges for the work done.

About an hour thereafter, Mrs. Rankin again called the Nash-Texas Company, and the following conversation took place, according to Mrs. Rankin's testimony on direct examination:

"A. I waited another hour and they didn't call and I called again.

"Q. Then what happened? A. They said we are so sorry, there has been an oversight but your car is all checked up and ready to come, we will send right out for you.

"Q. Then what happened, was anything else said at that time? A. I said how much is my bill and the man said $4.40 and I said, all right I will come back with the negro and pay my bill and he said if we send a car out for you you will come back with the negro and pay your bill and I said yes.

"Q. After you had asked how much it was and told him you would come back he then said to you, if we send out for you you will come back with the negro and pay your bill and you said yes? A. Yes sir."

On cross-examination, Mrs. Rankin testified:

"Q. You asked Mr. Knight if he would send a car out to you, didn't you? A. No, I said, `What about Mrs. Rankin's car' and he said `Mrs. Rankin, haven't they called you about the car' and I said, `No,' and he said, `That's too bad, it is all ready checked over and ready to come and we will send right for you, right out to you.'

"Q. Is that all that was said? A. Then I said how much is my bill?

"Q. What did he say? A. $4.40.

"Q. Who next said anything? A. Then I said, `All right, I will come back with the negro driver and pay my bill,' then he said, `Mrs. Rankin, you will come back with the negro and pay your bill,' and I said, `Yes.'

"Q. You thought he was kind of afraid that you were not going to pay your bill, acting that way? A. No, I had done business with them before.

"Q. You have always paid your bills, haven't you, they never had any occasion to think you would not pay one?"

In our opinion, there is no escape from the conclusion that the driver of the automobile, in which Mrs. Rankin was riding, was a servant or agent of the Nash-Texas Company loaned to Mrs. Rankin, in furtherance of a courtesy of the company, done at Mrs. Rankin's request, and she, in turn, accepting the favor in the performance of a duty she owed the company to come back to its place of business and complete her covenant, express or implied, to pay the charges for the repairs. The Nash-Texas Company, on completion of the repairs of the automobile, performed its contract with Mrs. Rankin, and nothing remained for it to do save and except to turn over the automobile on payment of the charges. The legal duty then rested upon Mrs. Rankin to pay the charges for the repairs at the place where the contract was to be and was performed, and she, recognizing that duty,...