Smith v. Conner, 11992.

• Decision Date: 13 May 1948
• Docket Number: No. 11992.,11992.
• Parties: SMITH v. CONNER.
• Court: Texas Court of Appeals

211 S.W.2d 630

SMITH v. CONNER.

No. 11992.

Court of Civil Appeals of Texas. Galveston.

May 13, 1948.

Appeal from District Court, Harris County; William H. Holland, Judge.

Action by W. S. Conner against William H. Smith and another for damages to plaintiff's person and property as result of an automobile collision. From an order overruling named defendant's plea of privilege, defendant appeals.

Affirmed.

Eugene C. Williams, of San Antonio, for appellant.

J. Edwin Smith, of Houston (Allen, Smith & Neal, of Houston, of counsel), for appellee.

GRAVES, Justice.

This is an appeal from an order of the trial court overruling the plea of privilege timely filed by the defendant, William H. Smith, who resides in Bexar County, Texas. The plaintiff, W. S. Conner, brought suit in Harris County, Texas, against Albert F. Schmidt, also a resident of Bexar County, Texas, for damages sustained to his person and property, allegedly as a result of a collision near the town of Katy in Harris County, Texas, between an automobile driven with due care by plaintiff and one negligently driven by the defendant, Albert F. Schmidt. The defendant, William H. Smith, appellant herein, was joined as a codefendant by the plaintiff, who alleged that Albert F. Schmidt was the partner, agent, servant, representative, or employee of William H. Smith. Trial was before the Court, without a jury, and judgment was rendered overruling pleas of privilege filed by both defendants. Only the defendant, William H. Smith, has appealed.

No findings-of-fact or law, were either requested or filed by the court as in support of its argument. Appellant's points-of-error are these:

"First: The undisputed evidence conclusively showed that Albert F. Schmidt was not acting within the scope of his employment at the time of the collision; that he was on a mission of his own, which mission was initiated by him for his own pleasure and purposes; that, at the time of the collision, he was doing nothing in furtherance of his employer's business.

"Second: There is no evidence of a trespass, under Sub. 9, Article 1995, R.C.S.1925, Vernon's Ann.Civ.St. Art. 1995, subd. 9, having occurred in Harris County, Texas."

It undisputedly appeared that the appellant, William H. Smith, and his codefendant below, Albert F. Schmidt, were brothers, the one having modified their common family name, the other not, and that the non-appealing one, Albert F. Schmidt, was, at the time of the declared-upon collision in Harris County, not only the employee and agent of the appellant, but was also then within the regular worktime, for which he was being paid by his employer.

In this connection, the appellant, in his brief, in substance, makes this appropriate concession: "If Albert F. Schmidt was acting as the agent, servant, or employee, of William H. Smith at the time of the collision, Subdivision 9, of art. 1995, R.C.S. Vernon's Ann.Civ.St. Art. 1995, subd. 9, would be applicable as to the appellant in Harris County, Texas, upon a further showing by the appellee of active trespass in that County by Albert F. Schmidt".

However, notwithstanding the fact of such trespass, which this accident — if having been the result of negligence upon the part of Albert F. Schmidt — constitutes, the rub under appellant's contention is, as his points specify, (1) that, under the conclusive effect of the evidence, Albert F. Schmidt, at the time of the accident, had neither been acting within the scope of his employment for his brother — being then on a mission of his own he had initiated for his individual pleasure — and was neither acting within the scope of his employment for, nor in furtherance of his brother's business, and furthermore, (2) that the accident was not shown to have happened within Harris County.

Neither of these propositions can be sustained; to the contrary, it is held that, under the evidence and the presumed findings of the court therefrom, it clearly appears that plain issues-of-fact were raised; first, over whether or not Albert Schmidt was acting, at the time of the collision, within the scope and course of his employment for his brother, William H. Smith, and second, whether the collision itself had occurred within the limits of Harris County.

In the circumstances so shown to have attended this cause, it is well settled that this Court must consider the evidence in the most favorable light permissible to the trial court's judgment overruling the plea-of-privilege. Porter v. Cluck, Tex. Civ.App., 13 S.W.2d 130; First National Bank v. Ervin, Tex.Civ.App., 12 S.W.2d 269.

While it would be going beyond the requirements to here detail the body of the evidence, it is clear that it was sufficient to support controlling features, which may be briefly thus epitomized: (1) that at the time of this collision or trespass, the appellant was engaged in the business of buying and selling used cars in Harris County; (2) that he had just bought one there, which was waiting in Houston to be taken to his home in San Antonio for resale by him there; (3) that it was customary in such instances for Albert Schmidt to go to Houston and get the cars so habitually purchased there by appellant for resale at San Antonio, and to take them over there, in accord with such usual course-of-business, for his brother, for the purpose of such resale at San Antonio; (4) that on the day of the accident here involved, ...