Worsham-Buick Co. v. Isaacs, 1908-6451.

• Decision Date: 06 November 1935
• Docket Number: No. 1908-6451.,1908-6451.
• Citation: 87 S.W.2d 252
• Parties: WORSHAM-BUICK CO. v. ISAACS et al.
• Court: Texas Supreme Court

Page 252

87 S.W.2d 252

WORSHAM-BUICK CO. v. ISAACS et al.

No. 1908-6451.

Commission of Appeals of Texas, Section A.

November 6, 1935.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Mrs. Mettie K. Isaacs and others against the Worsham-Buick Company. To review a judgment of the Court of Civil Appeals [56 S.W.(2d) 288], reversing a judgment in favor of plaintiffs and remanding cause in conformity to answers to certified questions [51 S.W.(2d) 277], defendant brings error.

Reversed and rendered.

Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.

Chamberlain, Green & Wade, of Dallas, and W. A. Wade, of Longview, for defendants in error.

HICKMAN, Commissioner.

This court has heretofore written an opinion in this case answering certified questions, for which see Worsham-Buick Co. v. Isaacs, 51 S.W.(2d) 277. For the three opinions of the Court of Civil Appeals see 56 S.W.(2d) 288, 293. From the last of those opinions, we quote the following clear and concise statement: "The action is one for damages by Mrs. Isaacs for herself and on behalf of her son, Alfred (a minor at the time of his father's death), and her married daughter, Mrs. Tribble, for injuries resulting in the death of R. W. Isaacs, husband and father of appellees, caused by the alleged negligence of appellant. Mr. Isaacs died as the result of injuries received when the automobile in which he was riding, was struck and demolished by an automobile belonging to appellant, driven by one A1 Simpson, appellant's service superintendent. The evidence is to the effect that Charles K. Cohn, appellant's sales manager, having control of its new cars in stock, permitted Simpson to take one out on a Sunday for personal use, who while intoxicated operated the car recklessly and negligently, colliding with the car in which Isaacs was seated, inflicting upon him injuries from which he died. The grounds of negligence alleged are, in substance: (a) That Simpson was at the time appellant's agent, acting within the scope of his employment, therefore liability was established under the doctrine of respondeat superior (this ground was not sustained by evidence, hence will not be considered further); (b) That as a question of law, appellant was chargeable with Simpson's negligence, because permitted to use and operate the automobile in violation of article 6686, R. S. 1925, as amended [Vernon's Ann. Civ. St. art. 6686], in that, being under a dealer's license and number plate issued to appellant, was not operated for demonstration purposes (this ground was sustained by evidence, but the answer of the Supreme Court to certified questions removed it as a ground of recovery, as shown hereafter); (c) also, that appellant was guilty of actionable negligence, in that Simpson, an unfit, incompetent, reckless driver, addicted to the habitual use of intoxicating liquors, was permitted by appellant's vice principals, with knowledge or notice of Simpson's unfitness, incompetency, recklessness, and dissipation, to use and operate the car upon the crowded highways of the city of Dallas."

The conclusion of the Court of Civil Appeals was that the evidence was sufficient to raise jury questions on the ground of negligence last above mentioned, denominated as (c), and, since no issues were submitted on that...