Winerich Motor Sales Co. v. Ochoa, 9015.

• Decision Date: 22 February 1933
• Docket Number: No. 9015.,9015.
• Citation: 58 S.W.2d 193
• Parties: WINERICH MOTOR SALES CO. et al. v. OCHOA.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 193

58 S.W.2d 193

WINERICH MOTOR SALES CO. et al. v. OCHOA.^*

No. 9015.

Court of Civil Appeals of Texas. San Antonio.

February 22, 1933.

Rehearing Denied March 22, 1933.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by Delia Ochoa against the Winerich Motor Sales Company and another. Judgment for plaintiff, and named defendant appeals.

Reversed and remanded.

Eskridge & Groce, of San Antonio, and Gibson & Blackshear, of Laredo, for appellant.

Ed A. Mullally and Hicks, Dickson, Bobbitt & Lange, all of Laredo, for appellee.

FLY, Chief Justice.

Appellee, a minor, through her mother, sued the Winerich Motor Sales Company, who will hereinafter be identified as the appellant, and Romeo Salinas, to recover damages inflicted upon her by Salinas while driving an automomobile belonging to appellant. The cause was tried by jury, resulting in a verdict and judgment in favor of appellee for $7,500.

The main issue in this case is, Was Romeo Salinas, at the time he drove the automobile of appellant against and over the body of Delia Ochoa, in the streets of Laredo, mangling one of her legs, a servant of appellant or an independent contractor in the prosecution of his own business? The evidence showed that appellant's main place of business was in San Antonio; that it had a branch establishment in Laredo. Romeo Salinas was a car repairer engaged in his business in Laredo. He was employed by appellant to repair any breaks or defects in its cars, and he always came to the garage of appellant to make the repairs, and was paid by the piece or job. Salinas had no shop, although he accepted jobs for others, using his own tools in making repairs, and working wherever he could.

On November 20, 1930, one West, an agent and employee of appellant, drove up to the garage of appellant and told Salinas that the motor in the car he was driving, which was the property of appellant, was "missing," and for him to get in and drive around and ascertain the cause of the misses in the motor. Salinas got in the car and drove off, and shortly afterwards ran over the girl, who was crossing the street, crushing one of her legs. At the time he struck the girl he was attempting to locate the trouble in the motor, with a view to repairing or correcting the defect.

The facts in this case were ample to show that the general employment of Salinas did not create the relationship of master and servant between the motor sales company and Salinas. He was an independent contractor, and could not be held to be subject to the orders of the motor sales company. He was following an independent occupation, with his own means and instruments, according to his ideas and methods. He was engaged in an occupation that required expert and skilled knowledge, and necessarily he could act according to his own means and methods. The facts of this case indicate that Salinas was a general...