Southwest Dairy Products Co. v. De Frates, 2204-7251.

• Decision Date: 22 February 1939
• Docket Number: No. 2204-7251.,2204-7251.
• Citation: 125 S.W.2d 282
• Parties: SOUTHWEST DAIRY PRODUCTS CO., Inc., v. DE FRATES et al.
• Court: Texas Supreme Court

125 S.W.2d 282

SOUTHWEST DAIRY PRODUCTS CO., Inc., v. DE FRATES et al.

No. 2204-7251.

Commission of Appeals of Texas, Section A.

February 22, 1939.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by L. C. De Frates and others against the Southwest Dairy Products Company, Incorporated, to recover for damages to a taxicab resulting from a collision with defendant's truck. Judgment for plaintiffs, and defendant appealed to the Court of Civil Appeals. On certified question.

Question answered.

Eskridge & Groce and Russell Talbott, all of San Antonio, for appellant.

Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellees.

HICKMAN, Commissioner.

This case is before us on certificate from the Court of Civil Appeals for the Second District at Fort Worth. In the trial court judgment was rendered in favor of appellees against appellant for damages to a taxicab resulting from a collision between the taxicab and a truck owned by appellant and being driven at the time by one of its employees, Alonzo Henderson. The judgment was based upon findings by a jury that the collision with its resultant injury to the taxicab was proximately caused by the negligence of Henderson, who at the time was acting within the scope of his employment by the appellant. The certificate in part is as follows:

"Following are facts conclusively established by evidence adduced upon the trial: The defendant maintained two places of business in San Antonio, one designated by witnesses as the main plant, located on Josephine Street, and the other located on Jones Street, where a washing rack was maintained for washing its trucks. The two places are seven blocks distant from each other and the main plant was north of the wash rack. It was the duty of Henderson to drive the trucks from the main plant to the other plant and after washing them drive them back to the main plant, ready for use. The hours of his employment lasted from five o'clock in the afternoon to one o'clock the night following. The collision occurred about midnight. Shortly before the collision, Henderson had started to drive the truck, with which the taxicab collided, from the main plant on Josephine Street to the wash rack on Jones Street in order to wash it, and then drive it back to the main plant. Instead of going directly to the wash rack, he drove the truck to his home to get his supper. His home was situated practically due west of the wash rack and at practically four times the distance as that between defendant's two places of business. After finishing his supper, he started to the wash rack for the purpose of washing the truck and then driving it back to the main plant where he got it. On that trip to the wash rack the collision occurred at the intersection of Camden and Brooklyn streets, which was about six blocks distant from the defendant's wash rack on Jones street and in a southwesterly direction therefrom, and not on the route between the two plants. The use of defendant's trucks by its employees on missions of their own had been strictly forbidden, all of which was well known to Henderson, who testified that he drove the truck to his home to get his supper, well knowing that such use was forbidden by his employer. See map in statement of facts showing location of the different places referred to.

"By its first assignment of error appellant insists that the evidence showed conclusively that at the time of the collision Henderson, its employee, was not acting within the scope of his employment and for that reason the court erred in refusing its motion for an instructed verdict in its favor after introduction of all evidence was concluded and before the case was submitted to the jury on special issues."

The question certified is as follows: "Should the assignment of error referred to above be sustained?"

The certificate is accompanied by a tentative opinion by Chief Justice Dunklin in which the view is expressed that the assignment should be sustained. In this view we concur. Cases involving facts more or less like the facts of this case are legion. We have considered a great many of them from this and other jurisdictions, but do not find it necessary or...