Van Cleave v. Walker

• Decision Date: 26 March 1919
• Docket Number: (No. 1506.)
• Citation: Van Cleave v. Walker, 210 S.W. 767 (Tex. App. 1919)
• Parties: VAN CLEAVE et al. v. WALKER et al.
• Court: Texas Court of Appeals

210 S.W. 767

VAN CLEAVE et al. v. WALKER et al.

(No. 1506.)

Court of Civil Appeals of Texas. Amarillo.

March 26, 1919.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Action by D. C. Walker and another against A. J. Van Cleave, B. F. Walling, and another. From judgments for plaintiff, the named defendants appeal. Reversed and rendered as to named defendants, and affirmed as to the other defendant.

Martin & Oneal, of Wichita Falls, for appellants.

Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellees.

BOYCE, J.

Appellees, D. C. Walker and wife, recovered damages in the court below against A. J. Van Cleave, B. F. Walling, and Alex Hirsch for the negligent killing of their minor son, the result of being run over by an automobile driven by the said Alex Hirsch. The automobile being driven by Alex Hirsch at the time belonged to the defendants Van Cleave and Walling, and the recovery against said two last named defendants was on the theory that the said Alex Hirsch was at the time of the accident in the employment and engaged in the business of the said defendants.

The defendants Van Cleave and Walling only appeal, and one of the principal questions on the appeal is as to whether the evidence is sufficient to show that the said Hirsch was at the time of the accident engaged in the business of the two appellants, so as to make them liable for his negligence. The evidence shows that the appellants Van Cleave and Walling were partners engaged in the sale of automobiles in the city of Wichita Falls, where they maintained a shop or salesroom. Alex Hirsch was employed by them as salesman and bookkeeper. Walling was the manager of the business; Van Cleave living in another town and being at the place of business only occasionally. During the absence of his employers, Hirsch had charge of the business. His duties were to keep the books and sell cars, and, as a part of this latter duty, to "demonstrate" them to prospective purchasers. He also at times drove the car which they used as a demonstrator on the streets of the city for the purpose of showing off its appearance and performance. He also at times took the demonstration car out and drove it for his own pleasure, taking his wife riding on some of these occasions. The only witnesses as to his authority to so use the automobile for his own private pleasure were the three defendants, and, while they testify that he had no right to so use it and had been "jacked up" for doing so, the jury would have perhaps been warranted in finding that he used the automobile occasionally for his own pleasure with the tacit consent of his employers. On the evening of the accident the defendant Hirsch closed up the salesroom, defendant Walling having already left, at the close of business hours for the day, and took the automobile out, going to his home for the purpose, so he testifies, of taking his wife riding. His wife had been taken sick in the afternoon, and his aunt, with whom they were living, suggested that she ought to have some medicine, and, according to the testimony of the said Hirsch, he started to town without eating his supper, for the purpose of getting the medicine, intending to leave the automobile at the salesroom, where it was his duty to return it whenever it was used, and after getting the medicine to go back home on the street car. It was as he was on his way to town that the accident occurred. It was about dusk in the evening.

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