Robert R. Walker, Inc. v. Burgdorf

• Decision Date: 05 December 1951
• Docket Number: No. A-3242,A-3242
• Citation: 150 Tex. 603,244 S.W.2d 506
• Parties: ROBERT R. WALKER, Inc. v. BURGDORF et al.
• Court: Texas Supreme Court

Page 506

244 S.W.2d 506

150 Tex. 603

ROBERT R. WALKER, Inc. v. BURGDORF et al.

No. A-3242.

Supreme Court of Texas.

Dec. 5, 1951.

Rehearing Denied Jan. 9, 1952.

Wheeler & Wheeler, Texarkana, Tex., for petitioner.

B. L. Hutchinson and Atchley & Vance, Texarkana, Tex., Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., all of Dallas, for respondents.

SHARP, Justice.

Robert R. Walker, Inc., brought this suit against Richard R. Burgdorf and the Kenosha Auto Transport Company for damages to its truck, trailer, and cargo, resulting from a fire at a filling station owned and operated by Richard R. Burgdorf, alleged to have been caused by the negligence of the servants of each of the respondents. The case was tried by the court upon an agreed statement of facts, and judgment was rendered for Robert R. Walker, Inc., against Richard R. Burgdorf, for $1143.83, that Robert R. Walker, Inc., take nothing against Kenosha Auto Transport Company, and that Robert R. Walker, Inc., be denied recovery against either Richard R. Burgdorf or Kenosha Auto Transport Company for $118.83, expenses incurred by reason of the injuries. On appeal to the Court of Civil Appeals by Richard R. Burgdorf and Robert R. Walker, Inc., that court reversed and rendered the judgment allowing damages against Richard R. Burgdorf, and affirmed that portion of the judgment in favor of the Kenosha Auto Transport Company. 239 S.W.2d 174.

Petitioner first contends that the Court of Civil Appeals erred in holding that the conduct of the employee of Kenosha Auto Transport Company was the sole proximate cause of the injuries complained of. Richard R. Burgdorf contends that the Court of Civil Appeals correctly held: (1) That no conduct on the part of the employees of Richard R. Burgdorf proximately caused the injuries complained of, because of the new and intervening act of the employee of Kenosha Auto Transport Company; and (2) that the conduct of the employee of Kenosha Auto Transport Company was the sole cause of the injuries complained of. Kenosha Auto Transport Company contends that the Court of Civil Appeals correctly held that the conduct of the employee of Kenosha Auto Transport Company was not within the course of his employment, and that the said Kenosha Auto Transport Company therefore was not liable for the negligence of its employee.

The agreed statement of facts established that John Shaw, who was in the employ of the Kenosha Auto Transport Company on February 18, 1948, was operating a transport truck for that company, and that the route followed by Shaw required him to drive the transport truck through the City of Texarkana. On that date Shaw drove the truck into Two States Service Station No. 2, which service station was owned and operated by Richard Burgdorf. Shaw drove the truck into the outside drive of the service station for the purpose of having it refueled and serviced. After Shaw had driven his truck into the service station, and while the same was being refueled and serviced, a truck owned by Robert R. Walker, Inc., was driven into the inside drive of the service station by LeVoy Meredith, an employee and driver for Robert R. Walker, Inc. The Walker truck was driven into the service station for the purpose of draining the left saddle gasoline tank, because water was believed to have accumulated therein. Shaw, the driver for Kenosha Auto Transport Company, after his truck had been refueled and serviced, signed a ticket and signed 'out' at 3:00 o'clock P.M., and was prepared and ready to continue on his journey through Texarkana. At this time the attendants of Two States Service Station No. 2 were in the process of draining the gasoline and water from the tank of the truck of Robert R. Walker, Inc., by having first removed the plug from the bottom of said tank and allowing the gasoline and water to run out; and an attendant, Akin, was playing a stream of water from a near-by hose upon the gasoline and water mixture from said tank, and washing it toward the drain and sewer outlet in the gutter of the street. While the gasoline and water was thus draining, and a stream of water was being directed upon it as it drained, Shaw, the driver of the Kenosha Auto Transport Company truck, walked up to the scene to watch the procedure, and while standing there lighted a cigarette. He was immediately warned by LeVoy Meredith, driver of the Robert R. Walker, Inc., truck, to be careful about lighting matches around gasoline; whereupon Shaw laughed and said, 'You know that gasoline and water will not burn'; and Shaw, simultaneously with making this statement, struck a match and deliberately threw the lighted match into the stream of gasoline and water, which mixture immediately ignited and burst into flames, causing the injuries complained of.

We will consider first the contention of Kenosha Auto Transport Company that the act of Shaw was not within the course of his employment, and not in furtherance of that company's business, and that the company was not liable for his negligence.

In order to fix liability upon Kenosha Auto Transport Company for the act of Shaw, the conclusion must be warranted from the evidence that his act was done in the prosecution or furtherance of the business of Kenosha Auto Transport Company. From the agreed statement it is quite clear that Shaw had stepped aside from his duties for Kenosha Auto Transport Company, and the act which caused the injuries was something wholly disconnected from his employment, and certainly not for the benefit of Kenosha Auto Transport Company, his employer. When he turned aside from the prosecution of his duties for Kenosha Auto Transport Company, although for only a short time, he ceased to act for his employer, and the responsibility for any act done by him during that time rested upon him alone. In this instance Shaw went entirely out of the scope of his employment, and when he threw the lighted match into the mixed gasoline and water, whether out of curiosity or for any other reason, he did so solely on his own initiative, and consequently Kenosha Auto Transport Company was not chargeable with liability for any injuries resulting from such act. Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367; Branch v. International & G. N. Ry. Co., 92 Tex. 288, 47 S.W. 974; Grubb v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App., 153 S.W. 694, writ refused; Rodgers v. Tobias, Tex.Civ.App., 225 S.W. 804, writ refused; Bresnan v. Republic Supply Co., Tex.Civ.App., 63 S.W.2d 1105, writ refused. The Court of Civil Appeals correctly decided that Kenosha Auto Transport Company was not liable for the negligence of its employee, Shaw.

Robert R. Walker, Inc., contends substantially that the Court of Civil Appeals erred in holding: (1) That the conduct of Shaw, the employee of Kenosha Auto Transport Company, was the sole proximate cause of the injuries complained of; (2) that Richard R. Burgdorf could not have reasonably auticipated an act would occur sufficient to set fire to the gasoline exposed to spark and flame by his own negligence; and (3) that the acts of Richard R. Burgdorf and his employees, together with the act of Shaw, the employee of Kenosha Auto Transport Company, were not concurring causes of the injuries complained of, and a proximate cause thereof. There are other assignments, but when all the assignments are considered together they relate to the causal relation between the negligence of the employees of Richard R. Burgdorf and the employee of Kenosha Auto Transport Company and the injuries complained of, and they will be considered together.

The filling station where the injuries occurred is situated in the City of Texarkana. The evidence clearly shows that it is situated on a street of Texarkana, where cars and trucks drive in to be refueled and serviced with oil and gasoline. In the case of City of Fort Worth v. Gulf Refining Co., 125 Tex. 512, 83 S.W.2d 610, 612, it was said that 'the filling station business is a hazardous one, requiring the utmost care in the handling of oils and high explosives.' See also Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475; Waters-Pierce Oil Company v. Snell, 47 Tex.Civ.App. 413, 106 S.W. 170; Elkton Auto Sales Corp. v. State of Maryland, 4 Cir., 53 F.2d 8.

This case is based upon either an instance of concurrent negligence, where the acts...