Salmon v. Hinojosa
| Citation | 538 S.W.2d 22 |
| Decision Date | 09 June 1976 |
| Docket Number | No. 15501,15501 |
| Parties | Ruben SALMON et al., Appellants, v. Jose S. HINOJOSA (Guardian of the person & Estate of Jose O. Hinojosa, a minor) et al., Appellees. |
| Court | Texas Court of Appeals |
Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellants.
Pope & Pope, Rio Grande City, for appellees.
Defendants, Ruben Salmon and Noel Salmon, partners who are operators of a fertilizer plant known as Red Barn Chemical Company, appeal from a judgment, following a nonjury trial, against them and Tomas Vasquez in the sum of $1,128.20 for damages to buildings. Vasquez has not perfected an appeal.
The damage to the buildings resulted when a truck owned by the partnership and operated by Vasquez, an employee of the partnership, crashed into the buildings. The litigation originated as two separate suits. The first suit was filed by plaintiff, Jose S. Hinojosa, as guardian of the person and estate of Jose Octavio Hinojosa, while the second suit was filed by plaintiff, Raul Guerrero. The two suits were consolidated for trial and a single judgment, awarding both plaintiffs recovery, was rendered.
The sole question here concerns the legal and factual sufficiency of the evidence to support the implied finding that, at the time of the accident, Vasquez was acting in the course of his employment.
Vasquez had been working the Ruben and Noel Salmon since the Salmons purchased and began operating the business, which is located in Rio Grande City. He worked six days a week for a weekly salary of $42.00.
Ruben Salmon owned a ranch located about three miles from Rio Grande City. This ranch was not part of the partnership property and Noel Salmon owned no interest in it. At the time of the accident, Vasquez was living at the ranch. He paid no rent, and there is no evidence that he performed any duties at the ranch, although there is testimony to the effect that his son took care of the cattle.
Vasquez owned no car, and he was allowed to use the company's truck for the purpose of going to and from work, keeping the truck overnight at the ranch. There is no evidence that while going from the ranch to the plant, or from the plant to the ranch, he was expected to perform any duties in connection with his employment at the plant. Nor is there any evidence that he did anything in connection with his employment at the plant while he was at the ranch.
On Monday, January 14, 1974, after completing his duties at the plant, Vasquez returned to his home at the ranch as usual, using his employer's truck. At about 10:00 P.M. the night of the 14th he decided to cross the border into the Republic of Mexico for the purpose of getting some of his clothing, which he said was at the home of his family in Camargo, Mexico. He left Camargo at about 5:30 A.M. on Tuesday, January 15, 1974, to return to Rio Grande City. Since he had to report for work at 7:00 A.M., he did not return to his home at the ranch but proceeded directly to his place of employment. Shortly before 7:00 A.M., while operating the vehicle on Main Street in Rio Grande City, he lost control of the truck and crashed into the buildings owned by plaintiffs.
Vasquez had not been given permission to take the truck into Mexico for any purpose. On the return trip he made no stops involving the business of his employer. His employer had given him no instructions concerning the route he should follow in going to and from work, but at the time of the accident he was traveling over one of the two routes he normally followed on his journeys from the ranch to work.
It is undisputed that at the time of the accident Vasquez was employed by the Salmons and that he was operating a truck owned by his employer. These facts give rise to the presumption that, at the time of the accident, he was acting within the scope and course of his employment. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940). However, this presumption was rebutted by direct and positive evidence that at the time of the accident Vasquez was merely on his way to work and was not engaged in...
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