Robertson Tank Lines, Inc. v. Van Cleave

• Decision Date: 09 June 1971
• Docket Number: No. B--2238,B--2238
• Citation: 468 S.W.2d 354
• Parties: ROBERTSON TANK LINES, INC., Petitioner, v. Johnnie VAN CLEAVE et al., Respondents.
• Court: Texas Supreme Court

Page 354

468 S.W.2d 354

ROBERTSON TANK LINES, INC., Petitioner, v. Johnnie VAN CLEAVE et al., Respondents.

No. B--2238.

Supreme Court of Texas.

June 9, 1971.

Rehearing Denied July 14, 1971.

Fulbright, Crooker, Freeman, Bates & Jaworski, Sam W. Cruse and Royce R. Till, Houston, for petitioner.

Jamail & Gano, Joseph D. Jamail and John Gano, Houston, Warren Burnett, Odessa, for respondents.

GREENHILL, Justice.

This is a suit by Johnnie Van Cleave, individually and as next friend of her four children, to recover damages suffered when her husband and their father, Acie Van Cleave, was killed by crashing into the rear of a tank truck owned by Robertson Tank Lines which was parked on the edge of a road near the northern city limits of Odessa. The truck had been parked by Alfred Dean Donaghey who was employed by Robertson as its driver.

The suit was instituted against both the driver of the truck, Donaghey, and his employer, Robertson. The case was tried against both defendants in one trial, but there have been separate appeals.

The jury found that the driver was not negligent in parking the truck where he did; but it did find that he failed to turn on his lights, and that such failure was negligence and a proximate cause. Judgment was entered on the jury's verdict against the driver, Donaghey, for $300,000. The judgment against Donaghey was affirmed for the full amount. Donaghey v. Van Cleave, 456 S.W.2d 524 (Tex.Civ.App.1970), and this court refused the writ of error with the notation 'no reversible error.' That judgment is now final, and this appeal involves only the appeal as to Robertson.

The jury refused to find that Robertson entrusted its truck to a reckless and incompetent driver; but it found that the driver was acting within the scope of his employment for Robertson when he parked the truck (issue 3), and when he returned to the truck to start its motor for the purpose of building its air pressure and warming its engine (issue 8). The trial court, on motion of Robertson, disregarded the answers to issues 3 and 8, and entered judgment for Robertson notwithstanding the verdict.

In its first opinion as to Robertson, the court of civil appeals unanimously affirmed the judgment of the trial court. 454 S.W.2d 785 (1970). On motion for rehearing, that court changed its mind and reversed the judgment of the trial court as to Robertson; and, in effect, it rendered judgment for the plaintiffs. 454 S.W.2d 785 at 792 et seq. Its second opinion and judgment rest upon a presumption to be discussed below.

We are of the opinion that the court of civil appeals was correct in its first opinion and was in error in its second opinion and judgment. Accordingly we reverse that judgment and affirm the judgment of the trial court.

As will be developed, there are two problems. The first is whether there is direct evidence that the driver was acting for his employer and within the scope of his authority for Robertson. The court of civil appeals held that there was none, and we agree. The second problem is whether there exists such a presumption that the driver was acting within the scope of his employment as would raise the issue of scope of employment and support the answers to issues 3 and 8. Those issues were that the driver was acting for Robertson when he parked the truck and when he returned to it to start the motor to warm the engine and build air pressure. As will be discussed, a presumption did arise as to scope of employment upon the proof that the driver was Robertson's employee and was in charge of Robertson's truck. The court of civil appeals held that although the presumption that Donaghey was acting in the scope of his employment arising from proof of ownership of the truck and employment of Donaghey was rebutted by evidence, the basic facts giving rise to the presumption (ownership of the truck and its operation by an employee) were some evidence to support submission of the issues on scope of employment and the affirmative jury findings thereto. 454 S.W.2d 785. The intermediate court relied heavily upon the case of Southland Life Ins. Co. v Greenwade, 138 Tex. 450, 159 S.W.2d 854 (1942), for its decision. As discussed below, we do not regard Greenwade as applicable to this case.

We hold that the basic facts of ownership of the truck and employment of Donaghey as driver, standing alone and rebutted by positive evidence, do not constitute probative evidence that Donaghey was acting within the scope of his employment at the time of the accident.

The testimony of the driver, Donaghey, relating to his actions preceding the time of the accident is reported in great detail in the opinion of the court of civil appeals on this appeal and also in the Donaghey v. Van Cleave, supra. We need, therefore, only to relate the basic facts.

Donaghey drove from Corpus Christi to Odessa by a route of his own choosing to deliver a tank load of methanol to Champion Chemical Company located on the eastern edge of Odessa. He reached Odessa about midnight and drove to the northwestern part of town to spend the night at his father's home. He returned across town to Champion Chemical the following morning and had unloaded the truck by 9 a.m. Upon phoning Robertson's terminal in Corpus, Donaghey was informed that they did not have another load to haul. He was instructed to return the truck to Corpus. He was not instructed to travel by any particular route; and he was permitted to eat, sleep, and rest at places of his own choosing.

Instead of proceeding to Corpus, Donaghey drove approximately eight miles in the opposite direction to visit his father at the Ram Gun factory where his father worked. He arrived there about 10 a.m. After visiting his father, he called a cousin who came by. They visited various 'beer joints, lounges and saloons' in the vicinity of the Ram Gun factory for about 12 hours and drank beer. Donaghey returned from the above establishments to the truck at approximately 11:30 that night to start the engine as above noted. He then left the truck and went with his cousin to a nearby cafe to drink coffee. While Donaghey and his cousin were at the cafe, Acie Van Cleave collided with the rear of the unlighted truck.

Donaghey testified that he started the truck with the intention of driving it to his father's house where he would spend the night and would return to Corpus the following day. Because of the accident, the truck was not moved that night. Donaghey was relieved by Robertson of his duties following the accident, and another driver returned the truck to Corpus. Donaghey, however, was paid the full commission rate for making the trip.

It is recognized in Texas that when it is proved that the truck was owned by the defendant and that the driver was in the employment of defendant, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940).

The presumption arises from the fact of ownership of the truck and employment of the driver; and when unrefuted, the presumption prevails that the driver was acting within the scope of his employment when he had control of the truck.

It is also the rule that in order to render the master liable for an act of his servant, the act must be committed within the scope of the general authority of the servant in furtherance of the master's business and for the accomplishment of the object for which the servant is employed. Broaddus v. Long, supra; Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282 (1939); Mitchell v. Ellis, 374 S.W.2d 333 (Tex.Civ.App.1964, writ refused). A problem here is whether the above presumption was rebutted, and if it was, what legal consequences ensued.

A leading case in this jurisdiction on the subject of presumptions is Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940), in which this court stated that the rule it adopted had been settled by Houston News Co. v. Shavers, 64 S.W.2d 384 (Tex.Civ.App.1933, writ refused). In Shavers, it was undisputed that the truck involved belonged to the defendant, Houston News Co., and that the truck driver was an employee of the company. The evidence showed, however, that the driver was on a personal errand when the collision occurred. In view of that fact, the holding was that the evidence of ownership of the truck and the fact that it was operated by an employee of the owner was insufficient to raise the issue of scope of employment. The rule, and the reason for the rule is stated in the opinion:

'Evidence that the truck with which the injury was committed belonged to the news company and that it was being driven by one regularly in its employment, in the absence of evidence to the contrary, raised a presumption that such servant was engaged in the news company's business at the time of such collision. (citation omitted) This, however, is a mere rule of procedure and the presumption vanishes when positive evidence to the contrary is introduced. The presumption grows out of the fact that not infrequently the evidence necessary to establish the character of the mission in which the servant was engaged is exclusively within the possession of the defendant. The effect of the rule is to 'smoke out' the defendant and to compel him to disclose the true facts within his knowledge. When, however, he discloses the true facts within his possession and such evidence is positive to the effect that the servant was not engaged in the master's business at the time of the injury, the presumption is nullified and the burden is then upon the plaintiff to produce Other evidence or his cause fails. * * *' (Emphasis ours) (64 S.W.2d at 386)

The above cases make it clear that there is no presumption aiding the plaintiff after the presumption is rebutted by positive evidence to the contrary.

This gets us to the most basic question in this case: Will the facts giving rise to the...