Rigsby v. Pitner

• Decision Date: 31 March 1960
• Docket Number: No. 13260,13260
• Citation: 334 S.W.2d 837
• Parties: Katie RIGSBY et al., Appellants, v. Roy M. PITNER, Jr., Appellee.
• Court: Texas Court of Appeals

Page 837

334 S.W.2d 837

Katie RIGSBY et al., Appellants, v. Roy M. PITNER, Jr., Appellee.

No. 13260.

Court of Civil Appeals of Texas, Houston.

March 31, 1960.

Rehearing Denied April 28, 1960.

W. W. Watkins and W. James Kronzer, Houston, and Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellants.

S. G. Kolius and Thomas A. Brown, Jr., Houston, and Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appellee.

WERLEIN, Justice.

This suit was brought by Katie Rigsby and husband, W. H. Rigsby, and Daisy Burks and husband, James A. Burks, against Roy M. Pitner, Jr. and Ernest R. Causey, to recover damages for personal injuries sustained by Mrs. Rigsby and Mrs. Burks in a collision between an automobile operated by Mrs. Burks and a GMC carryall owned by defendant, Roy M. Pitner, Jr., and at the time driven by his employee, Ernest R. Causey. Prior to the trial, Causey died, and by order of the trial court the cause against Roy M. Pitner, Jr., appellee herein, was severed from the cause of action asserted by the plaintiffs against the said Ernest R. Causey.

The case was tried to a jury which found all issues in favor of the appellants, and awarded the Burkses $2,000 and the Rigsbys $6,500. Appellee filed a motion asking the court to render judgment non obstante veredicto in his favor or, in the alternative, to render judgment in his favor disregarding the answer made by the jury to Special Issue No. 1, asserting that there is no evidence that at the time of the collision Causey was acting within the scope and course of his employment for Pitner. The court sustained such motion and entered judgment that appellants take nothing.

Appellants' only Point complains that the court erred in refusing to enter judgment for them based upon the findings of the jury, and in entering judgment no obstante veredicto for appellee, for the reason there was evidence of probative value in the record to raise and support the findings to all the special issues and particularly the answer to Special Issue No. 1.

The uncontradicted testimony shows that Pitner was an engineer by profession and had his place of business and office at 611 Calhoun Street in the City of Houston; that Causey was in his employ, having gone to work for him on a permanent basis in April of 1955; that on the morning of April 21, 1955, Causey, McClanahan and Robbins, the latter two being also employees of Pitner, reported to Pitner's office between 7 and 8 a. m. where they were given by Pitner their assignment and instructions for some work to be done in Binglewood, a addition some 11 miles out the Hempstead Highway from the Courthouse in Houston; that Causey was in charge of the party consisting of himself, McClanahan and Robbins and acted as 'party chief', and that the carry-all was turned over to him to take the men to Binglewood and bring them back.

We shall first consider the testimony of appellants' witness Robbins, who was the only one who testified as to what the party did and where Causey drove the carry-all after leaving Pitners' office at about 8 a. m. Robbins testified that they left in Pitner's GMC carry-all with Causey driving. They went to Binglewood where they measured some houses and the distances from houses to lot lines, and entered notations and dimensions in a filed book which Causey had with him so that the plans could be drawn on a plat when they got back to the office; that they finished up what they had to do out there at 1 o'clock, in the afternoon; that they knocked off because they had finished what they had to do; that their pay started when they left Pitner's office and terminated when they left the field job, and that they turned in four hours for the day and were paid for four hours' work.

He also testified that after they finished up that job they went to a little cafe out on the Hempstead Highway, where they stayed two hours and had three or four beers; that while there they decided to go to Haney's house [Haney was a former employee of Pitner]; that they went from said cafe to an icehouse or lounge on North Main Street about a block north of Boundary Street which, as he remembered, was the second place they went to drink beer; they got there by leaving the Hempstead Highway at Eleventh Street and going east on said street and then on Pecore to North Main, the trip taking about 30 minutes; that they stayed at the second place half an hour, drinking beer; that they then went to Haney's house on Quitman and a beer joint on Quitman Street at Elysian; that Robbins and McClanahan went into the beer joint or icehouse and Causey went across the street where he stayed an hour and then joined the others at the beer joint where they stayed another half hour or hour, drinking more beer; that they were in such third beer joint from about 4 p. m. until about 6:30 p. m.; when they decided to return to Pitner's office; that they went on Elysian Street to Lorraine, jogged a block over to Hardy, made a jog to McKee and turned south; that he, Robbins, was looking around talking and did not see the accident; and that he spent that night and the next day and night in jail, charged with being drunk.

The evidence shows that the collision occurred on McKee Street about one block south of Buffalso Bayou and that Causey was convicted of driving while intoxicated and fined $75 and confined in jail for three days.

Pitner testified that he gave Causey instructions to come right back to the office when the job was done and to put the carry-all across the street where his garage was located; that he pointed out on the map the location of the work they were to do, and that he instructed them either to come home or call him when they finished staking off the lots; that he did not give them instructions to perform any services other than staking off the lots; and that when Causey called about 12 or 1 o'clock, he told him to come on back and bring the truck [carry-all] directly to the office. This was testimony of an interested party, but it is substantially corroborated by Robbins who testified when asked if it was Pitner's instructions that they were to go straight to the job and come straight back, that, he, Pitner, told Causey that, and also that he [Robbins] knew that the standing instructions to those in the truck were that they were to come right back from that job. Robbins further testified that when the accident occurred they were some two miles farther east than Pitner's office, to which they were supposed to return.

It seems clear that the evidence hereinabove set out, standing alone, shows that there was a complete departure by Causey from the course of his employment. Appellants rely, however, in addition to a presumption which will be hereinafter discussed, upon the following testimony of Robbins which they say constitutes some evidence that Causey was acting within the course of his employment:

'Q. Let me ask you this, Mr. Robbins. Do you know whether or not a field book was missing? A. Yes, Haney had the filed book at his house. It was in his truck.

'Q. Had you seen that field book in Haney's truck before and did you know that it was in Haney's truck? A. Yes.

* * *

* * *

'Q. When you left Haney's house, did you take the field book that had been at Haney's house? A. Yes, sir.

'Q. Was it a field book of Mr. Pitner's? A. Right.

'Q. Was it a filed book that pertained to work of Mr. Pitner? A. It did.

'Q. It was a field book that was going to be used the following day in connection with work for Mr. Pitner? A. Yes, sir.

'Q. Mr. Haney previously worked for Mr. Pitner? A. Yes, sir.

'Q. And had Haney's truck been used in connection with the work done for Mr. Pitner? A. It had.'

As we construe this testimony, Robbins, in answering the questions propounded, was stating what he, Robbins, did and not what Causey did. True, Robbins later testified that when they got to the third beer joint on Quitman Street, he went inside and drank a beer and Causey went across the street where he stayed about an hour and then came over to the beer joint and drank another one or two beers. It is not shown where Causey went when he crossed the street, nor what his purpose was in going there. The inference is that it was to see Haney.

The trial court was of the opinion that there was no evidence to sustain the affirmative answer to Special Issue No. 1, that Causey was acting within the scope and course of his employment for appellee at the time of the collision, and accordingly entered judgment as a hereinabove stated. In order to sustain a judgment non obstante veredicto, it must be determined that there is no evidence of probative force upon which the jury could have made the findings relied upon. Lynch v. Ricketts, Tex.Civ.App., 306 S.W.2d 410, reformed and affirmed Tex., 314 S.W.2d 273. 'We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings and we must disregard all evidence which would lead to a contrary result.' Biggers v. Continental Bus System, 1957, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359, 363.

In considering the testimony of Robbins upon which appllants must rely, it is at once observed that there is no evidence that Causey or Robbins was authorized or instructed to pick up any field book. Both Pitner's testimony and Robbins' testimony show just the contrary. There is no evidence that Causey, much less Robbins, had any general authority to pick up such field book or that the act done grew out of an authority which Pitner had conferred upon either of them. Causey was not a general superintendent--only a party chief of the party on the job that morning. When Robbins or Causey took the field book of Pitner's on leaving Haney's house, it was not an authorized but a voluntary act on his part in no way related or incidental to the work which they had been assigned to do and had finished at Binglewood. They had completed their job for the day and...