Schroeder v. Rainboldt

• Decision Date: 12 November 1936
• Docket Number: No. 1637-6698.,1637-6698.
• Citation: Schroeder v. Rainboldt, 97 S.W.2d 679, 128 Tex. 269 (Tex. 1936)
• Parties: SCHROEDER et al. v. RAINBOLDT et al.
• Court: Texas Supreme Court

97 S.W.2d 679

SCHROEDER et al. v. RAINBOLDT et al.

No. 1637-6698.

Commission of Appeals of Texas, Section B.

November 12, 1936.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by I. N. Rainboldt, individually and as next friend for his minor child, Wanda Rainboldt, against Henry Schroeder, F. A. Graham, and the Dr. Pepper Bottling Company. To review a judgment of the Court of Civil Appeals [66 S.W.(2d) 496] affirming a judgment for plaintiff, defendants Schroeder and Graham, together, and the defendant bottling company on its own behalf, bring error.

Judgments of the trial court and the Court of Civil Appeals reversed and remanded.

Joseph W. Hale and George Clark, both of Waco, E. C. Gaines, of Austin, and McCormick, Bromberg, Leftwich & Carrington and S. M. Leftwich, all of Dallas, for plaintiffs in error.

Bryan & Maxwell, of Waco, for defendants in error.

TAYLOR, Commissioner.

This is a suit by I. N. Rainboldt, individually and as next friend to recover damages for personal injuries sustained by his six year old daughter Wanda. The suit is against Dr. Pepper Bottling Company, Henry Schroeder, and F. A. Graham. Upon the first trial judgment was for plaintiff but was reversed by the Court of Civil Appeals. Dr. Pepper Bottling Co. v. Rainboldt, 40 S.W.(2d) 827. Judgment upon the present trial was for plaintiff upon jury findings against all defendants and was affirmed by the Court of Civil Appeals. 66 S.W.(2d) 496. Two applications for writs of error were filed, one by the company and the other by Schroeder and Graham. Both were granted.

At the time of the accident Wanda was crossing diagonally North Fifth street in the city of Waco near the middle of the block and was struck and run over by a truck owned by Schroeder and driven by Graham, his helper. They are alleged by Rainboldt to have been acting for themselves "and as servants, agents and employes of the defendant company in the sale and distribution of * * * the drink commonly known as Dr. Pepper"; also that the truck operated by Schroeder and Graham was under the control of the company, and that the company directed the places to which it should be taken, the things with which it should be loaded, and exercised control in other particulars. Schroeder was accompanying Graham and was seated beside him in the truck when the accident occurred. The truck carried Dr. Pepper signs on the body, as did the trucks used by all of the company's salesmen. The negligence charged by Rainboldt was the failure of Graham to sound his horn, failure to promptly apply his brakes, and discovered peril.

The defenses interposed in addition to a general denial were contributory negligence on the part of Wanda resulting from her own acts, and on the part of the parents and imputed to her, and that of "sudden emergency," in that, if Graham failed to use his brakes promptly or sound a warning, it was because the act of Wanda in attempting to run across the street in the manner alleged created such an emergency as to render a reasonably prudent driver incapable of deliberate action. It was specially pleaded by the company that Schroeder was an independent contractor, Graham was his employee, and that the company was not liable for their acts. The defendants pleaded also that the collision was due solely to an unavoidable accident.

The jury found that Schroeder was not an independent contractor, but was an agent and employee of the company, and that he was in charge of the truck which was being operated for the joint use of Schroeder and the company; also that Graham was working with him in its operation with the company's knowledge and consent and that his failure to sound his horn and apply the brakes were proximate causes of the injuries. The findings were in favor of plaintiff on the issues of discovered peril and sudden emergency; also on the issues of contributory negligence. The jury found that Wanda attempted to run across the street diagonally where there was no street intersection, but that her conduct in so doing did not constitute negligence or create a "sudden emergency" as defined by the court and was not the sole proximate cause of the collision. It was found also that she failed to keep a proper lookout for approaching automobiles while proceeding across the street, but that her failure to do so was not negligence.

There was evidence to support the findings on the material issues submitted, including the issues relating to actionable negligence on the part of Graham and discovered peril. He himself testified that when he was about 30 feet from the place where he struck Wanda "she was just leaving the sidewalk on the opposite side of the street" and was "running toward the truck" at an angle of about sixty degrees; that she had her raincoat pulled up at the side of her head and that he failed to sound his horn. The jury found that his failure to do this and his failure to apply his brakes as she entered the street were acts of negligence proximately causing the accident.

The jury found that Schroeder was both an employee and agent of the company and in charge of the truck; that the driver was working with him in its operation with the knowledge and consent of the company; and that its operation was for the joint use and benefit of Schroeder and the company; also that Schroeder was not an independent contractor.

While the assignments of error are numerous, it is necessary to discuss only those relating to the question of independent contractor and the manner in which the case was submitted to the jury. Anticipating a reversal of the case on account of error later to be pointed out, the testimony bearing upon the question of the relationship of the company and Schroeder will be reviewed with a view to ascertaining if it will be necessary upon another trial to submit to the jury the special issues and definitions involving this question.

Miller testified that he was sales manager and in that capacity looked after the business of the salesmen; that the company operated ten trucks out of its plant and that he looked after the checking of the trucks to ascertain what they had on and how much; that he did this "the first thing of a morning when those drivers are loading out"; that the company permitted its salesmen to have helpers and Schroeder's son-in-law, Graham, usually went with him in that capacity and had been doing so for a year or more; that the company designated the towns for the different drivers to make, and no driver was privileged to get on any other route; that Schroeder had been working for the company about seven years when the collision occurred, and was paid a commission for selling Dr. Pepper at the rate of 15 cents per case; that "when he takes a case out and sells it he gets seven and a half cents and when he brings an empty in he gets seven and a half cents." Miller's testimony in question and answer form in part reads:

"Q. You use this system of trucks and truck drivers as your salesmen for your products, is that right? A. They sold the Dr. Pepper, yes sir.

"Q. And that was the main purpose for which you had them there, wasn't it, to sell Dr. Pepper products? A. That is why he asked for the route, yes sir.

"Q. Yes, and you call them salesmen and truck drivers indiscriminately, don't you? A. Yes sir.

"Q. And as Mr. Schroeder was out on his route, his primary purpose, so far as your interest was concerned, was the selling of Dr. Pepper merchandise? A. Yes sir.

"Q. Who down there at the plant exercises supervision and control over the drivers? A. I do.

"Q. You have a right, as manager there, or who had the right down there to hire and fire drivers? A. I do.

"Q. That is true with reference to Schroeder or anybody else? A. Just so they are drivers.

"Q. Now, with reference to whether or not, Mr. Miller, you would have the right to discharge Mr. Schroeder in case he was not satisfactory, what are the facts? A. I could and would."

He further testified he had seen Graham drive Schroeder's truck; that the company had Schroeder's truck painted for him and paid for it.

As to the character of service required by the company of its salesmen Miller testified:

"Q. And the truck drivers and salesmen were expected to diligently serve their routes, were they not? A. Yes sir.

"Q. You required of them that they do not neglect any of the towns on their routes, did you not? A. Yes sir.

"Q. You knew as sales manager about how much merchandise should be sold in each of those towns on a man's route, didn't you? A. Just about, yes sir.

"Q. And you expected and required those salesmen to sell approximately that much merchandise in each town, didn't you? A. I was expecting them to get results, yes sir.

"Q. That merchandise was sold by these men on a price fixed by the company, wasn't it? A. Yes sir.

"Q. You had a right at any time to discharge any one of these salesmen and truck drivers for unsatisfactory services, didn't you? A. The salesmen or truck drivers, not the helpers."

Mr. Buchannan, the bookkeeper, testified that Schroeder's route was No. 7, which covered "in the direction of" Mart, Valley Mills, and Crawford; that a sheet showing the charge sales to the customers was turned over to him (Buchannan) and that he made a charge to the customer and later sent him a bill for it; that he turned those bills over to Schroeder to collect when he went out on his route, and that when Schroeder reported the collection it was credited to the customer's account; further, that the company had Schroeder's truck painted and had the signs of the company put on it for advertising purposes; that when the drivers came back in the afternoon they were credited with the cash and merchandise, which two accounts were supposed to balance each day.

Schroeder testified he had been working for the company about seven years and had been running a truck for it all of that time; that at the time of the accident he was returning from a...