Studebaker Bros. Co. v. Kitts

• Decision Date: 27 November 1912
• Citation: 152 S.W. 464
• Parties: STUDEBAKER BROS. CO. v. KITTS.
• Court: Texas Court of Appeals

152 S.W. 464

STUDEBAKER BROS. CO. v. KITTS.

Court of Civil Appeals of Texas. San Antonio.

November 27, 1912.

Rehearing Denied January 8, 1913.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by James Kitts, a minor, through his father, W. C. Kitts, as next friend, against the Studebaker Brothers Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith, Robertson & Robertson and Spence, Knight, Baker & Harris, all of Dallas, for appellant. Geo. O. Wallace and Carden, Starling, Carden & Hemphill, all of Dallas, for appellee.

FLY, C. J.

Appellee, a minor, through his father, W. C. Kitts, as next friend, instituted suit against appellant, a private corporation, to recover damages resulting from personal injuries received by appellee through the negligence of appellant in permitting a certain automobile, owned and operated by it, to collide with a vehicle in which appellee was seated. The grounds of negligence were that the automobile was being operated at a greater rate of speed than was permitted by the ordinances of the city of Dallas, and that the brakes were defective on the automobile so that it could not be stopped and thus prevent the accident. Appellant filed a general demurrer and general denial, and specially pleaded that at the time of the accident the automobile "was not being operated by any one upon the business of the defendant, nor in connection with the business of the defendant, nor under the direction or control of defendant." The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $2,000.

An automobile owned by appellant, used as a truck, while being operated by an employé of appellant in a negligent and reckless manner, on the streets of the city of Dallas, collided with a delivery wagon in which appellee was seated and injured him. The wagon was standing still by the curbstone when struck by the automobile. The brakes were out of order on the automobile. The automobile, at the time of the collision, was running at a rate of speed in excess of that prescribed by the city ordinance. The driver of the car was acting under orders from the foreman of appellant at the time the accident occurred. The driver swore: "This car was used only to haul stuff that the Studebakers sold and manufactured, and to haul things for the men that were working for the company." There was testimony which tended to show that there was no property on the automobile at the time of the accident, although the employés of appellant swore that a porch swing belonging to the foreman was on the truck and being carried to his home under his orders. There was testimony to sustain the amount of damages found by the jury.

The judgment in this case is based on the negligent conduct of the driver of an automobile belonging to appellant, and the defense rests on the proposition that, although the driver was in charge of an automobile, the property of appellant, he was at the time not engaged in the service of the master, but was attending to the business of the foreman. The proposition is based on the assumption that the uncontradicted testimony showed the facts necessary to sustain the proposition. There are some facts and circumstances, however, which tend to support a different conclusion. There was testimony to the effect that the swing was not seen by witnesses who saw the automobile at or about the time of the collision. The defense now made was not set up in the original answer, but was first disclosed about 16 months after the suit was instituted.

The evidence disclosed that the car was used to haul goods for the master and his employés. There is no pretense that the foreman did not have the right to use the car for transporting the swing; in fact, it was shown by appellant that the foreman had the right to use the cars belonging to the corporation at any time when it did not interfere with his employer's business. The use of the car by the employés for their own purposes was shown to have been contemplated and ratified by the employer. The use of the car was one, therefore, authorized by the appellant, and the driver was acting within the scope of his employment when the collision occurred. It is not a case of lending the car to an employé or other person to perform some act for himself, but is one in which an employé is using the car of the employer under a custom and agreement that prevailed between the employer and employé. It was the master's will that the driver should haul the goods of the foreman, and to all intents and purposes he was engaged in the master's business just as much as though he had been hauling the master's swing. The driver had not stepped aside from his master's business to do an act not connected with such business, but the act grew out of and was a part of such business.

The rule is thus clearly stated by Shearman & Redfield on Negligence (5th Ed.) § 147: "If the act is done while the servant is at liberty from service and pursuing his own ends exclusively, there can be no question of the master's freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master. On the other hand, where a servant is allowed by his master to combine his own business with that of the master, or even to attend to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in, when a third person was injured by his negligence; but the master will be held responsible unless it clearly appears that the servant could not have been directly or indirectly serving his master in the act, the negligent performance of which caused the injury."

Under the facts of this case the driver of the car could, at slight intervals during the day, haul for the master, then for the employés; the master being liable at one moment, and a few minutes thereafter not being liable. It was such a mingling of the business of the master and servant that the master will not be allowed to escape the results of the negligence of the servant by fine-spun theories as to whom he was serving at the time of the negligent act. The act of carrying the swing to the house of the foreman was authorized by the master, and liability should follow such authorization. The driver of the car was employed to deliver goods for his master and for the employés, and he was acting as directly within the scope of his employment in serving the one as the other.

The foreman testified: "The auto truck at that time was under my control as foreman for Studebaker. I got it with the understanding that I was responsible for anything that happened to the car while it was in my possession, and if it got broke, or anything like that, they charged me up with it. * * * The company also furnished this truck here for the shop, and I used the truck...