Trachtenberg v. Castillo

Decision Date15 November 1923
Docket Number(No. 1522.)
PartiesTRACHTENBERG et al. v. CASTILLO.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by Concha Trejoda Castillo against K. Trachtenberg and C. Axelrad, doing business as the El Paso Auto Wrecking Company. Judgment for plaintiff. Defendants appeal. Reversed and remanded.

Jones, Jones, Hardie & Grambling, of El Paso, for appellants.

John L. Dyer and R. A. D. Morton, both of El Paso, for appellee.

WALTHALL, J.

On the 17th day of March, 1922, Rudolfo Castillo, a five year old son of Concha Trejoda Castillo, while crossing Overland street in the city of El Paso, was struck and killed by a motor truck then being driven by Tom Allen. This suit was brought by Concha Trejoda Castillo, the mother of the child, against K. Trachtenberg and C. Axelrad, individually, and as partners, doing business under the firm name of El Paso Auto Wrecking Company, to recover damages alleged to have been sustained by her on account of the death of the child, Rudolfo.

Plaintiff alleged that defendants were the owners of the said motor truck, and that at the time of the accident resulting in the death of the child the said motor truck was then being operated by Tom Allen, a servant of defendants, acting in the due course of his employment, and in the furtherance of defendants' business. The negligent act assigned and submitted by the court was a failure on the part of the driver of the motor truck to keep a sufficient lookout ahead of the motor truck to discover the presence of the child.

Defendants answered by demurrers, general and special, general denial, and specially denied that the driver of the motor truck, Tom Allen, was guilty of the negligence alleged; denied that Tom Allen, at the time of the accident resulting in the death of the child, was the servant of defendants; denied that Tom Allen, at the time of the negligent act complained of, was acting within the scope of any employment of defendants.

The case was tried with a jury and submitted upon special issues. The issues, both of pleading and the evidence submitted on the trial, are reflected by the matters submitted to the jury, in the court's charge and the jury's answers thereto, which are as follows, after definitions of terms, about which no question is presented:

"Question No. 1: Do you find from the preponderance of the evidence, at the time of the accident complained of, Tom Allen was then and there an employee of the defendants, and acting in the course of his employment for them?" To which the jury answered "Yes."

"Question No. 2: Do you find from a preponderance of the evidence that Tom Allen, at and just before the time of the collision, failed to keep a lookout ahead?" To which the jury answered: "Yes."

"If you answer the preceding question in the affirmative then answer:

"Question No. 3: Do you find from a preponderance of the evidence that Tom Allen was negligent in failing so to do?" To which the jury answered: "Yes."

To question 4 the jury found that the negligence found was a proximate cause of the injury and death of the child. To question 5 the jury found that the pecuniary loss to plaintiff, by reason of the death of the child, was the sum of $1,150.

At the request of defendants the court submitted special issue "C", as follows:

"Do you find, under the terms of Allen's employment by the defendants, if any, and, as a part of the compensation of said Allen for such employment, if any, that said Allen was given the right to use said truck for his own purposes when not being used for purposes of the defendants, and that at the time of the accident the said Allen was using said truck for his own purposes and not in the prosecution of any business for the defendants?" To which the jury answered: "Was using for defendants' business."

Judgment was rendered for the plaintiff for the amount as found by the jury.

On the overruling of defendants' motion for a new trial, notice of appeal was duly given.

Under the first two propositions appellants make the contention that Tom Allen, the negro driver of the motor truck, was not the employee of appellants, was not acting in the furtherance of their business at the time of the accident resulting in the death of the child, but was then using the truck for his own purposes.

Without quoting at length from the evidence it, without contradiction, shows the following: The motortruck, at the time of the accident and for several years prior thereto, belonged to one of the appellants; appellants were partners in the matters about which Tom Allen was employed, and had been so for some two years prior to the accident, in which business the truck in question was used in hauling the goods of appellants, and on the day of the accident had been so used by Tom Allen at the call, instance, and employment of appellants; the license for the use of the truck was taken out by appellants, Tom Allen paying part of the expense of the license and appellants paying part, and the truck when used was used under that license; the driver of the truck, Tom Allen, a year or more before the accident had been in the regular employment of appellants as the driver of one of their trucks, but for some time previous to the accident Tom Allen was not in the regular employment of appellants, but was using this particular truck partly for his own use and for the use and at the employment of appellants when called on for service by them; Tom Allen was permitted by appellants to keep the truck in his possession at all times, and to use the truck in going to and returning from his work when working for appellants; on the day of the accident and half of the day previous he had been working for appellants, at their call and employment, and used the truck all the time in performing that service, and at the end of the day's work for appellants and at the time of the accident, he (Tom Allen) was returning in the truck to his home, or to the place where he kept the truck; at the end of that day's service he had not been called for further service for appellants, but was subject to call for service with the truck, at any time. When working for appellants, they furnished the gasoline used by the truck, and one of appellants had given Tom Allen the gasoline for the truck for the day of the accident; on the day of the accident and prior thereto appellants had paid Tom Allen for his services for that day and half of the previous day, and while returning home from that service the accident occurred; in paying Tom Allen for his services appellants paid him what they thought was right, whether much or little, and he accepted it without question. When Tom Allen was using the truck for himself, he paid no rent for its use; shortly after the accident Tom Allen called appellants over the phone and informed them of the accident; appellants on being so informed took off the plate showing the number of the license and hid the plate in their office, where the same was found by the police in their efforts to locate the truck and discover its owner.

The first question presented is: Do the facts show that Tom Allen was an employee of appellants at the time of the accident, and was his service in driving the truck in furtherance of the service of appellants for which he was employed? In other words, and more specifically stated: Does the evidence show that Tom Allen's service as an employee of appellants ceased when he had completed the hauling for appellants for that time or call, and had returned to appellants' place of business and received his pay for his services; or did his service to appellants extend to the time and place where he kept the truck? We have concluded that the undisputed evidence conclusively shows that Tom Allen was not in the employ of appellants in driving the truck at the time of the accident, his service to appellants having ceased when the hauling for which he was employed had ended and he had received his pay.

Appellee refers us to several cases to sustain the contention that Tom Allen in driving the truck at the time of the accident was then in the service of appellants, among them: Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S. W. 77; Western Indemnity Co. v. Leonard (Tex. Com. App.) 248 S. W. 655; D'Aleria v. Shirey (C. C. A.) 286 Fed. 524; Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959, 47 Am. Rep. 796; Barmore v. Ry., 85 Miss. 426, 38 South. 210, 70 L. R. A. 629, 3 Ann. Cas. 594; Jones v. Exchange (Tex Civ. App.) 250 S. W. 1075, and others. None of the cases, we think, are sufficiently...

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