Wright v. Maddox

• Decision Date: 03 November 1926
• Docket Number: (No. 7026.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 288 S.W. 560
• Parties: WRIGHT v. MADDOX et al.
• Court: Texas Court of Appeals

288 S.W. 560

WRIGHT v. MADDOX et al.

(No. 7026.)^*

Court of Civil Appeals of Texas. Austin.

November 3, 1926.

Rehearing Denied November 24, 1926.

Appeal from District Court, Dallas County; Royal R. Watkins, Judge.

Suit by Annie Maddox and husband against G. G. Wright. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 286 S. W. 607.

John W. Pope and J. L. Zumwalt, both of Dallas, for appellant.

Miller & Godfrey, of Dallas, for appellees.

McCLENDON, C. J.

Suit by Annie Maddox and husband against G. G. Wright for personal injuries resulting from an automobile collision between the car in which Mrs. Maddox was sitting parked at a curbing and a Pierce Arrow belonging to Wright, and being driven by his negro chauffeur, Lemon Bland. Trial to jury. Judgment for plaintiff under special issue verdict.

Appellant has filed thirty-two assignments of error; all of which are insisted upon in his brief. These assignments may be classified under five heads: (1) Those dealing with the overruling of special exceptions to plaintiffs' petition; (2) those dealing with the instructions to the jury in refusing a peremptory instruction, refusing a special issue, and complaining of special issues upon the subject of the liability of appellant for the acts of his chauffeur; (3) those relating to the court's special issues on the subject of negligence; (4) an assignment complaining of improper argument by plaintiffs' counsel; and (5) an assignment complaining of a special issue on the measure of damages.

The four special exceptions are so manifestly without merit that we do not deem it necessary to discuss them.

Under the second class of assignments appellant contends, in the first place, that the evidence is insufficient as a matter of law to support a finding that Lemon Bland at the time of the collision was acting within the scope of his authority, and that appellant, under the undisputed evidence, is not responsible for his acts. The car had been left at a welding shop for repairs, and was later being driven to appellant's home by the chauffeur when the accident happened. Appellant's contentions are that the evidence conclusively shows that the chauffeur had no authority to get the car and drive it home; and, further, that the evidence conclusively shows that at the time of the accident the chauffeur was on a mission of his own, he having picked up a friend whom he had agreed to drive home.

There are a number of assignments relating to the manner in which this issue was submitted to the jury and other assignments questioning the sufficiency of the evidence to support the jury's findings. By the thirty-second assignment appellant complains of the following statement made by appellees' counsel in his closing argument to the jury:

"Gentlemen of the jury, if you answer special issues Nos. 3 and 4 `No,' then this little woman has no case."

The trial court instructed the jury that this argument was improper; but it is contended, nevertheless, that its prejudicial effect was not thereby removed. Special issues Nos. 3 and 4 related to the matter of defendant's liability for the acts of his chauffeur.

We have reached the conclusion that under the evidence appellant was liable as a matter of law for the chauffeur's negligence, and this holding renders immaterial the assignments complaining of the charge in this regard and the assignment complaining of argument addressed alone to this particular phase of the case.

With reference to the liability of appellant for the chauffeur's negligence, the record shows the following: The accident occurred about 6 o'clock in the afternoon of July 3, 1922, on North Walton street, just north of Elm street, in Dallas, Tex. Appellant lived in a northeasterly direction from this point on Worth street. Lemon Bland was at that time in the employ of appellant as chauffeur. He had been in his employ continuously for several years and at different times since about 1912. His general duties were to look after appellant's automobiles, of which he had three, a Pierce Arrow, Hudson, and Ford; keep them in order and repair as far as his skill would permit; drive the several cars when directed by appellant or other members of his family; and do such other work around the place as he might be called upon to do. When a car needed repair necessitating its being taken to a shop, it was his duty to report to appellant, and appellant would give him instructions. At noon on the day of the accident, he reported to appellant that the Pierce Arrow needed repairs in reference to a pit cock on the gasoline tank and a brace on the running board; quoting from his testimony:

"Mr. Wright ordered me to take the car down there (to the Southern Welding Company on Elm street). The car was taken down there late in the afternoon, I cannot say just what time it was, of this same day, July 3d. As to how I knew what time to go back after the car, I had to get some more parts for it, and I just left it there. He told me about how long it would take to weld it and get it all fixed up. I was to get a pit cock for the air tank, but I didn't get one. That is what I mean by other parts; the air tank for letting air out the same as street cars have, a pit cock so you could turn it; that is all. I had gone to Ferris & Dunlaps' for it."

We quote the following other extracts from his testimony:

"I received instructions from Mr. Wright to take a Pierce Arrow automobile to have fixed, along in July, 1922. I took the car to have it fixed. I carried it to the Southern Welding Company."

"I had informed Mr. Wright that I needed the air bracket and running board fixed on the car. He told me to take it down there. When I got the car down there, I just left it there. I left it there for them to work on, fix this tank and this bracket. I could not say exactly how long they was in fixing the car; fixing, working on it. I suppose it taken them three or four hours, something like that or more. When they finished that car, I went and got it."

"I was not told which way to bring that car back home. I just went down and got the car. He just told me to leave it down there; just told me to take it down and have it fixed. I took it down and left it, and then went back and got it. I don't know how many times before that Mr. Wright had told me to take that car off and have it fixed."

We quote the following from appellant's testimony:

"He never used any car except through some instruction of me or some member of the family. In the event that I had an automobile that should go to the shop or garage, he always reported to me anything to be done with the car, and then I gave him instructions, where to take it; positive instructions, for him to take it some place and have it fixed, when he told me what was the matter with it. I always told him where to take it and what to do with it. I remember instructing him to take this car down to the Southern Welding Shop, about 50 feet north of Dundee street. I told him to take it down there and have the bracket fixed, and the pit cock fixed for the air tank. The car was started with air. I told him to have the car fixed and leave it there."

"From the information about what was to be done, I thought it would take two or three or four hours, something like that, maybe longer; didn't know whether he could get it right away or not. I instructed him to leave the car there and come on back home. When I had a car in the garage to be fixed, we had two more cars at home we could use."

"I did not instruct Lemon Bland on the evening of the third of July, 1922, to go get the car where I had instructed him to leave it and bring it home."

"As to whether I ever gave my chauffeur, Lemon Bland, instructions or the right or permission to carry people in my car to their homes, or to deliver people other than my family, he had positive instructions not to ever take anybody in my car."

"As to whether Lemon Bland, my chauffeur, had my permission or had the right by my permission, to use this Pierce-Arrow automobile, or any other car that I had at that time, without my instructions, to do the things that he desired to do with them, he did not; he had instructions, positive instructions, what to do with the car; not to ever use it at all for his benefit or any other way. Whenever he used the car, he always used it under positive instructions."

"I did not authorize or grant the privilege to Lemon Bland on July 3, 1922, to pick up a negro boy by the name of Walter Fish and take him home in my automobile. I did not have any knowledge of that act, if it happened; didn't know anything about it. It was done without my consent or knowledge."

"I had some idea about how long that work would take when I sent him down there. I thought it would take three or four hours; didn't know whether they could get through on it right away. I didn't know how long."

"I did not tell him to go get a pit cock. I told him to go down and have it fixed to the car; the man down there — not him. He was to have the pit cock fixed on the car, and a brace put on the fender, I think it was; my recollection."

"It was when I went home to dinner that I told him to go down with the car. I told him after dinner to take it down there."

About 6 o'clock in the evening Lemon went to the Southern Welding Company, and got the car and started to drive it home. From that point he drove east a short distance to Crowdus street, south on Crowdus one block to Main, east on Main two blocks, where he turned north into South Walton street. Just after he made this turn a negro friend of his, by the name of Walter Fish jumped on the running board and asked to be driven home. He lived on College street, and, in order to take him home, Lemon would have had to turn east on Indiana street and come back into Worth street from College instead of proceeding on North Walton street to Worth street. The following diagram shows the relative position of the several points...