Younger Bros. v. Moore

• Decision Date: 21 December 1939
• Docket Number: No. 3888.,3888.
• Citation: 135 S.W.2d 780
• Parties: YOUNGER BROS., Inc., v. MOORE.
• Court: Texas Court of Appeals

Page 780

135 S.W.2d 780

YOUNGER BROS., Inc., v. MOORE.

No. 3888.

Court of Civil Appeals of Texas. El Paso.

December 21, 1939.

Rehearing Denied January 18, 1940.

Error from District Court, Rusk County; Paul G. Brown, Judge.

Action by J. O. Moore against Younger Brothers, Inc., for injuries sustained in a collision between two trucks. Judgment for plaintiff, and defendant brings error.

Modified, and affirmed as modified.

Clifford Stone, of Henderson, Benbow, Saunders & Holliday, of Houston, and Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.

Hill & Bath, of Henderson, and Wm. Madden Hill, of Dallas, for defendant in error.

PRICE, Chief Justice.

This suit was instituted in one of the District Courts exercising jurisdiction in Rusk County by J. O. Moore, as plaintiff, herein so called, against Younger Brothers, Inc., a corporation, as defendant, and it will be hereinafter so called.

Plaintiff's trial petition alleged that a truck owned and operated by defendant on a public highway in Rusk County collided with a truck operated by plaintiff, and thereby plaintiff suffered severe and permanent injury. Many grounds of negligence are charged against defendant in the manner of the operation of its truck on the occasion in question.

Defendant answered by general denial and a very detailed plea of contributory negligence. The trial was by a jury, the case being submitted on some sixty or more special issues.

Various issues of negligence on the part of the defendant were submitted and all found against defendant. The issues of contributory negligence submitted were all found in favor of the plaintiff. The verdict assessed plaintiff's damages at $30,309.70. Judgment was entered on the verdict in favor of plaintiff. Defendant duly perfected this appeal.

The findings of the jury find ample support in the evidence and we find the facts in accordance therewith.

Defendant took a great number of exceptions to the court's charge. These exceptions constitute 93 paragraphs with many subdivisions in each paragraph, a copy of the exceptions taken constitute about 70 pages of the transcript. The trial court overruled each and all of these exceptions, and in our opinion the action was entirely proper. Defendant requested some 20 or more special issues many of which were subdivided. These requests were, we think, all refused by the trial court. The amended motion for a new trial took 183 pages, subdivided into 569 paragraphs.

From this welter of confusion and tautology defendant brings forward in its brief 71 assignments of error.

Defendant at all relevant times here was engaged in the trucking business in the oil fields. Its operations seem to have been rather extensive, in that in the pursuit of this business it owned and maintained numerous trucks and employed drivers, helpers and executives. Its business was to transport goods for others for compensation. Sinclair Prairie Oil Company, for convenience hereinafter called Oil Company, is engaged in Rusk County in the operation of oil wells. Defendant had some sort of arrangement or contract with the Oil Company with reference to doing its trucking.

On the morning of November 12, 1937, W. F. Parker, construction foreman for the said Oil Company, communicated to Earl Robins, field superintendent of the defendant in its business in the eastern part of this state, that he wanted a truck and helper to do some hauling for his Company.

On the occasion in question and at all relevant times A. D. Koen and W. W. Williams were employees of defendant and subject to the orders and directions of Robins, as foreman. Koen was employed by defendant as a truck driver and paid daily wages by defendant twice each month.

At about 8 A. M. on the morning of November 12th Koen and Williams left the headquarters of defendant in pursuance of orders from Robins in one of defendant's trucks to do hauling for the said Oil Company. They first proceeded to the town of Arp where the defendant's truck was serviced with oil, gasoline, etc. This at the expense of defendant. Then they drove to about two miles from there to the camp of the Oil Company. Koen reported to Parker, construction foreman of the Oil Company; Parker gave him instructions to get a load from the warehouse of the Oil Company and to take same to the Peter Tipps lease; Koen proceeded to get the load and started therewith south to said lease along the Arp-Henderson highway. As defendant's truck proceeded along this highway south plaintiff was proceeding in a truck along the same highway north. The trucks, in an attempt to pass each other, collided. This collision, as established by the verdict of the jury, was due to the negligence in the operation of defendant's truck on the occasion in question.

Plaintiff, a man of about 32 years of age, as a result of the collision, suffered terrible injuries. The seriousness and effect of these injuries are not seriously controverted by defendant. His back was broken. The treatment necessitated him to stay in a plaster cast for about four months, and at the date of the trial he was wearing a brace. The evidence was sufficient to support a finding of a permanent destruction of earning capacity; also that plaintiff did and perhaps would suffer great pain. He was earning at the rate of something over $150 per month at the time of his injury, his employment relatively permanent. The Oil Company was to and did pay for the services performed for it by defendant on the occasion in question on an hourly basis.

Defendant contends that under the undisputed testimony it was not liable for the negligence of Koen in the operation of its truck on the occasion in question for the reason that as a matter of law Koen was then the special employee of the Oil Company and not subject to defendant's control.

The facts bearing on the relationship of the Oil Company to defendant, Koen to defendant and to the Oil Company, as hereinbefore stated, have been recited from the testimony of defendant's witnesses.

The relationship of employer and employee is contractual in its nature. 18 R.C.L. p. 493, sec. 3.

Beyond any question Koen was in the general service of defendant. If he was in the special service of the Oil Company and at the time defendant was without right to control the manner of performance of the work, it is not liable for torts committed in the course of this special employment. Missouri Pac. R. Co. v. Jones, 75 Tex. 151, 12 S.W. 972, 16 Am. St.Rep. 879. If full credit be given to the testimony of defendant's witnesses, the Oil Company was to direct what work was to be done. The determination of what work is to be done does not imply the right of directing how it was to be done. Walker v. El Paso Electric R. Co., 103 Tex. 259, 126 S.W. 262; Fink v. Brown, Tex.Civ.App., 183 S.W. 46, modified on another point, Tex.Com.App., 215 S.W. 846.

In Fink v. Brown, supra, the employee was sent by his master to install flues in a boiler for a partnership. His employer received as compensation ninety cents per hour and furnished no materials. It is held a question of fact whether he was in the special employ of the partnership or remained subject to the control of his general employer. In this case the opinions fail to show the business in which the conceded general employer of Brown was engaged. Here the work of defendant was hauling goods for others. Koen was paid by defendant to help it do this work. The question here is, who, at the time of this accident, had the legal right to control the manner in which Koen drove defendant's truck? Attached to this right of control is legal responsibility for his acts or omissions.

"The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct." Higgins v. Western Union Tel. Co., 156 N.Y. 75, 50 N.E. 500, 501, 66 Am. St.Rep. 537.

"The business of the employer [the truck company] included the operation and driving of the car while engaged in the service for which leased." Thatcher v. Pierce, 281 Pa. 16, 125 A. 302, 304.

We are of the opinion that a truck driver employed by a trucking company is subject to its control while driving its truck in the transportation of goods for one of its customers. Tilling v. Indemnity Co. of North America, Tex.Civ.App., 283 S.W. 565, writ denied; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Texas Company v. Brice, 6 Cir., 26 F.2d 164; Craige v. Austin Powder Co., 4 Cir., 91 F.2d 664; Williams v. Gulf Refining Co., Tex.Civ.App., 229 S.W. 959; Traders & General Ins. Co. v. Jones, Tex.Civ.App., 95 S.W.2d 189; Dave Lehr, Inc. v. Brown, 127 Tex. 236, 91 S.W. 2d 693; Smith Bros. v. O'Bryan, 127 Tex. 439, 94 S.W.2d 145.

We do not mean to hold that the proposition above set forth is universal in its character and that there may not be exceptions. However, it has application to the situation in this case. The evidence shows without contradiction that at the time of the accident the driver Koen was subject to the control of defendant.

To our mind the case of Dave Lehr, Inc. v. Brown, supra [127 Tex. 236, 91 S.W.2d 694], by the Commission of Appeals, is conclusive of the matter. Judge German, in the course of the opinion, quotes with approval from the case of Peer v. Babcock, 230 N.Y. 106, 129 N.E. 224: "A truckman hauling coal for coal dealers and using his own team and wagon in making deliveries to their customers at his own pleasure at a certain rate per ton, the places being indicated on delivery slips given to him, held to be a carrier for hire, and not an employee, for whose negligence, causing a collision, the dealers would be liable."

The ex parte acts of a master cannot make his servant the servant of another. The ex parte acts of the servant while performing the work of his master cannot shift responsibility therefor to another.

So far in this opinion we have considered the...