United Furniture & Appliance Co. v. Johnson

• Decision Date: 25 June 1970
• Docket Number: No. 483,483
• Citation: 456 S.W.2d 455
• Parties: UNITED FURNITURE AND APPLIANCE COMPANY, Appellant, v. Charles JOHNSON et ux., Appellees.
• Court: Texas Court of Appeals

Page 455

456 S.W.2d 455

UNITED FURNITURE AND APPLIANCE COMPANY, Appellant, v. Charles JOHNSON et ux., Appellees.

No. 483.

Court of Civil Appeals of Texas,

Tyler.

June 25, 1970.

Rehearing Denied July 16, 1970.

Kenley, Boyland, Hawthorn & Starr, Larry W. Starr, Longview, for appellant.

Bill Wilder, Henderson, Richard W. Fairchild, Nacogdoches, for appellees.

DUNAGAN, Chief Justice.

This is a suit for damages resulting from personal injuries arising out of an automobile accident. The original suit was filed against Jessie David Floyd, the driver of the vehicle with whom the plaintiff collided, and his employer, United Furniture and Appliance Company (appellant). Jessie David Floyd was not represented by an attorney at the trial of the case and is not a party to this appeal. Before the trial, the plaintiffs (appellees) impleaded State Farm Mutual Automobile Insurance Company, asserting a claim to 'uninsured motorist' benefits upon the basis that Jessie David Floyd was an uninsured motorist. United Furniture and Appliance Company primarily defended the case upon the basis that Jessie David Floyd was not acting within the course and scope of his employment at the time the accident occurred.

The suit was tried to a jury and judgment was entered upon the jury verdict in favor of the plaintiffs-appellees against Jessie David Floyd and United Furniture and Appliance Company. Judgment was also entered in favor of the plaintiffs-appellees against State Farm Mutual Automobile Insurance Company. A separate appeal has been perfected by State Farm Mutual Insurance Company under Cause No . 473 in this Court. Appellant United Furniture and Appliance Company appeals from the overruling of its motions for instructed verdict by the trial court, the overruling of its motion for judgment notwithstanding the jury verdict, and the overruling of its amended motion for new trial following entry of judgment.

Upon the jury verdict judgment was rendered for appellees against United Furniture and Appliance Company, appellant in this case, in the sum of $54,400.00 and against State Farm Mutual Automobile Insurance Company in the sum of $10,000.00, with interest at the rate of six per cent (6%) per annum from the date of the judgment.

Appellant first contends there is 'no evidence' or there is 'insufficient evidence' to support the finding of the jury that Jessie David Floyd was acting within the course and scope of his employment at the time of the accident in question.

STATEMENT OF FACTS

United Furniture and Appliance Company was in the business of selling furniture, appliances, rugs and things of that nature, and normally delivered the merchandise it sold.

D. M. Willeford was secretary-treasurer, buyer, salesman, and general manager of United Furniture and Appliance Company.

Jessie David Floyd was United Furniture and Appliance Company's general delivery man who had been hired to do virtually anything his employer wanted done. Generally, his duties consisted of making deliveries, repairs, doing various 'odds and ends' around the store and doing anything else he was told to do.

Floyd's immediate superior, Willeford, had the right to hire and fire employees and, specifically, he had and exercised the right to direct Floyd's daily activities for United Furniture even down to the 'minutest' detail of Floyd's work. According to Willeford's specific testimony, he had hired Floyd to do '* * * anything that I wanted done.' If Willeford asked Floyd to do something, it was understood that Floyd was to obey the order; otherwise, Willeford had the right to dismiss him.

On the day of the accident, Willeford told Floyd to deliver a step ladder and a vacuum cleaner, owned by United Furniture to Willeford's home. The ladder and vacuum cleaner were to be used by Johnny Fincher, an employee of United Furniture--its floor-covering and draperies man--who was hanging draperies in Willeford's recently purchased home. While working at the Willeford home, Fincher was on 'company business' and was on United Furniture's payroll.

Floyd put the step ladder and the vacuum cleaner in his own personal car and proceeded to deliver them to the home of Willeford as he had been directed to do by Willeford. Floyd testified that he put the ladder and vacuum cleaner in his own personal automobile to make the delivery because it was raining and he did not want to get these items wet. While proceeding to make the delivery in his personal automobile on a direct route from United Furniture and Appliance Company's store to the Willeford's home, the automobile in which he was driving collided with an automobile in which Mrs. Johnson was an occupant.

While United Furniture owned delivery trucks which Floyd could have used, he was not specifically instructed to use one of them to make the delivery in question. He was only told to deliver the items to the Willeford home. Moreover, Floyd had not been told by his employer that he must use the company trucks to make deliveries, nor had he ever been told or even requested by his employer not to use his personal car in making deliveries. While it was Willeford's intention that Floyd should use United Furniture and Appliance Company's pickup trucks to deliver the step ladder and vacuum cleaner, he did not express this intention to Floyd; he just assumed that Floyd would go in one of the pickup trucks. Upon United Furniture learning after the accident that Floyd had used his own automobile in making the delivery, he (Floyd) was never reprimanded or rebuked in any way for doing so. Floyd was not docked by United Furniture for the time he spent on the trip to the Willeford home on the occasion involved. Floyd was paid on an hourly basis and was paid by United Furniture for the trip to the Willeford home on the occasion of the accident. Willeford at no time paid Floyd anything for making that trip from his own funds.

Floyd testified that he had no personal reason whatsoever for taking his own car. There is evidence in the record that the delivery of the items for his employer was his only motivation for the trip on the occasion in question and at the time of the collision he was doing what he had been hired by United Furniture to do and told to do by Willeford.

The accident which formed the basis for this lawsuit occurred during Floyd's normal working hours for United Furniture and Appliance Company.

In fact, both Willeford, and Floyd believed, and so testified that, in making the trip in question, Floyd was doing one of the specific things he had been hired to do.

On the occasion in question there was nothing mechanically wrong with Floyd's automobile which caused the collision. His...