Walker v. Johnston

• Decision Date: 10 January 1951
• Docket Number: No. 12206,12206
• Parties: WALKER v. JOHNSTON et al.
• Court: Texas Court of Appeals

Page 534

236 S.W.2d 534

WALKER v. JOHNSTON et al.

No. 12206.

Court of Civil Appeals of Texas, San Antonio.

Jan. 10, 1951.

Rehearing Denied Feb. 7, 1951.

Willett Wilson, Houston, for appellant.

M. J. Flahive, Alfred M. Scott, Austin, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Gordie Walker in the District Court of Calhoun County against W. B. Johnston, W. B. Johnston, Jr., and W. W. Johnston, individually, and W. B. Johnston and Sons, a co-partnership composed of said individuals, and Juan Gonzales, seeking to recover damages sustained by him as the result of a collision between a truck driven by Juan Gonzales and an automobile driven by Gordie Walker. Pleas of privilege were filed by each of the defendants and after hearing evidence the trial court sustained the plea of privilege of W. B. Johnston, W. B. Johnston, Jr., W. W. Johnston and W. B. Johnston and Sons, a co-partnership, and ordered the case, insofar as it affected them, transferred to the District Court of Victoria County, and overruled the plea of privilege of the defendant Juan Gonzales, driver of the truck, from which judgment Gordie Walker has prosecuted this appeal.

The evidence shows that on the 29th day of May, 1950, the defendant Juan Gonzales was traveling in a southwesterly direction, driving a truck-tractor and semi-trailer, over Highway 35, when a collision occurred with a 1950 model Tudor Ford Sedan automobile operated by Gordie Walker on the same Highway and traveling in the same direction as the tractor-truck and semitrailer, in Calhoun County, Texas. There was evidence offered tending to show that the truck-tractor and semi-trailer was being operated in violation of law by Juan Gonzales, in that it was dark and more than two hours after sunset, and such truck-tractor and semi-trailer did not have burning a tail light or any visible reflectors on the rear end, in violation of Penal Code Articles 798 and 827a, Vernon's Ann.P.C. arts. 798, 827a.

The trial judge in overruling the plea of privilege of Juan Gonzales necessarily found that he was guilty of committing a crime or offense in Calhoun County at the time of the collision. Therefore, the only question raised is whether or not the evidence conclusively connected the other defendants with the commission of this crime or offense. If the defendants were conclusively connected with the crime or offense, then their pleas of privilege should have been overruled by the trial court.

The theory relied upon by the plaintiff was that this truck-tractor and semi-trailer was owned and operated by a co-partnership under the trade name of W. B. Johnston and Sons, and that W. B. Johnston, W. B. Johnston, Jr., and W. W. Johnston composed the partnership. The only testimony tending to connect the Johnstons with the operation of the truck-tractor and semi-trailer was given by Leonard M. Fisher, Sheriff of Calhoun County. He was asked the following question and gave the following answer:

'Q. Did the cab have any lettering on it? A Yes, sir, as I remember, it was 'W. B. Johnston and Sons, Victoria,' but I know it was Johnston and Sons.'

While the answer by the Sheriff is not unequivocal that the firm name of 'W. B. Johnston and Sons, Victoria,' was printed on the door of the cab, for the purpose of this opinion we shall treat this testimony as conclusively establishing the fact that such firm name was printed upon the door of the cab of this truck-tractor.

Each of the Johnstons in filing his plea of privilege described himself as a member of the firm of W. B. Johnston and Sons, so we may take it that they were in fact members of the firm of W. B. Johnston and Sons, which will distinguish this case from that of Dillard v. Smith (Rusin v. J. A. & E. D. Transport Co.), 146 Tex. 227, 205 S.W.2d 366.

Appellant contends, the fact that the truck-tractor bore the name of the partnership, W. B. Johnston and Sons, was sufficient to conclusively establish the fact that this truck-tractor and semi-trailer was owned by the partnership and that Juan Gonzales the driver of the truck was the agent of the firm and at the time of the collision was driving the truck in the course of his employment. There are many cases holding that where the name of a corporation or an individual is printed on the side of a truck it is sufficient to justify the inference that the corporation or individual is the owner of the truck and that its driver is the agent of the corporation or individual and was acting at the time in the course of its or his employment. J. H. Robinson Truck Lines, Inc., v. Jones, Tex.Civ.App., 139 S.W.2d 129; Globe Laundry v. McLean, Tex.Civ.App., 19 S.W.2d 94, 95; Mrs. Bairds' Bakery v. Davis, Tex.Civ.App., 54 S.W.2d 1031, 1032; Freeman v. Texas Bread Co., Tex.Civ.App., 111 S.W.2d 307; Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147; R. S. Duke & Sons v. Burk, Tex.Civ.App., 233 S.W.2d 617; J. A. & E. D. Transport Co. v. Rusin, Tex.Civ.App., 202 S.W.2d 693; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533; Austin Bros. v. Sill, Tex.Civ.App., 83 S.W.2d 716; Claer v. Oliver, Tex.Civ.App., 62 S.W.2d 354; Harper v. Highway Motor Freight Lines, Tex.Civ.App., 89 S.W.2d 448; Roadway Express v. Gaston, Tex.Civ.App., 90 S.W.2d 874; Weber v. Reagan, Tex.Civ.App., 91 S.W.2d 409; Southern Underwriters v. Girard, Tex.Civ.App., 107 S.W.2d 775; Howell v. J. Mandelbaum & Sons, 160 Iowa 119, 140 N.W. 397; Peveto v. Smith, Tex.Civ.App., 113 S.W.2d 216, affirmed in part, 134 Tex. 308, 133 S.W.2d 572; Tyler Milk Products Co. v. Shipman, Tex.Civ.App., 129 S.W.2d 444.

But we have been unable to find any case holding that such circumstance conclusively establishes the fact of ownership, agency and scope of employment. The firm's name being on the truck could be nothing more than a circumstance which would be sufficient to support the trier of facts in finding that the driver of a truck was the agent of the firm and was acting at the time in the course of his employment but would not compel him to do so. It creates only an inference and not a presumption of law. 9 Blashfield's Cyclopedia of Automobile Law, & 6057, p. 370; Pozzobon v. O'Donnell, 1 Cal.App.2d 151, 36 P.2d 236; Middletown Trust Co. v. Bregman, 118 Conn. 651, 174 A. 67; McMullen v. Warren Motor Co., 174 Wash. 454, 25 P.2d 99.

In Montgomery v. Hutchins, 9 Cir., 118 F.2d 661, 665, the Court said: 'Where, as here, evidence is admitted showing that a third person is operating the automobile, that the automobile belonged to the defendant, and that the third person is in the employ of the defendant, then the jury may, but is not compelled to, make the inference that the third person was acting within the scope of his employment. If defendant chooses to rest without introducing any evidence, then it is for the jury to determine whether or not it wishes to make the inference.'

Here the trial judge, in exercising his discretion as the trier of facts, refused to make the inference that the firm was the owner of the truck and that the driver was the agent of the firm, or that the driver was acting in the course of his employment, and it becomes our duty to engage every reasonable presumption and intendment in favor of and in support of the action of the trial judge. We are unwilling to hold that the mere circumstances that the name of the firm appeared on the door of the truck would be sufficient to compel the trier of facts to find that the firm was the owner of the truck-tractor and semi-trailer, that the driver was the agent of the firm and was acting at the time in the course of his employment.

What was said in Howell v. J. Mandelbaum & Sons, 160 Iowa 119, 140 N.W. 397, 399, might well be here copied: 'The name on tools or vehicles and articles generally is commonly accepted as indicating ownership, and, though not of much probative weight, it is enough, in the absence to the contrary, to carry the issue to the jury. This rule is not unreasonable, for, if the inference is not correct, no one ordinarily is in a better situation to establish the fact than the party so named.'

In passing, we may call attention to the fact that there is no evidence here as to the license number on the truck-tractor and semi-trailer, no evidence as to what business W. B. Johnston and Sons of Victoria were engaged in, and if engaged in the transportation business whether they had a certificate of convenience and necessity authorizing them to operate this particular truck-tractor and semi-trailer, and as to whether or not they were carrying insurance upon this particular truck-tractor and semi-trailer as required by law. If these facts had been shown by evidence or admissions the presumption of ownership by the co-partnership would have been greatly strengthened.

The judgment of the trial court is affirmed.

NORVELL, Justice (dissenting).

The Fiftieth Legislature amended Exception 9 of Article 1995, Vernon's Civil Stats., so as to read as follows: '9. Crime or trespass.-A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, whether committed by the defendant or by his agent or representative, or in the county where the defendant has his domicile. As amended Acts 1947, 50th Leg., p. 739, ch. 366, § 1.'

Undoubtedly the purpose of the Legislature in adding the additional words (above italicized) was to change the rule announced originally in Austin v. Cameron, 83 Tex. 351, 18 S.W. 437, wherein it was held that venue of a case against an employer could not be maintained in the county where a servant committed a crime, unless it was shown that the employer was also guilty of the commission of the crime in the capacity of a principal, accomplice or accessory, even though the employer might be civilly responsible for damages by reason of his servant's act under the doctrine of respondeat superior. See Mercer v. McCurley, 142 Tex. 197, 176 S.W.2d 923, for...