Guitar v. Wheeler (36 S.W.2d 325, 1931)

WALTHALL, J.

Myrtie Wheeler, for herself and as next friend of Luther Wheeler and Alma Wheeler, minors, and Bernice Vale, joined by her husband, Jack Vale, plaintiffs, brought this suit against John Guitar, Sr., John Guitar, Jr., and Repps B. Guitai-, individually, severally, and in their respective capacities, as trustees for, and owners and parties at interest in the Guitar Trust Estate, together with others named as parties at interest in said estate, and W. B. Tidwell, to recover damage for the death of George S. Wheeler as the result of being struck by an automobile driven by W. B. Tidwell; the petition alleging that Tidwell was an employee of the Guitars above named in driving said ear, and that in driving the car he negligently caused the cai-to strike Wheeler, thus causing his death.

Defendants, except Tidwell, answered by general denial, alleged that Tidwell was not in their employ at the time of the accident causing the death of Wheeler, but was on a mission of his own, and was not -in the performance of any duty he owed defendants; defendants pleaded contributory negligence on the part so managing his car as not to keep it in control on the highway; not keeping a lookout; not putting on the brakes prior to the collision in an effort to avoid it.

The court’s charge is as follows: “Special Issue No. 1: Do you find from the preponderance of the evidence that the defendant, W. B. Tidwell, at the time and place and in the manner testified to herein was guilty of negligence in the operation of his car, on the night of the 26th of December, 1928 ? Answer yes or no.”

Appellants objected, to the giving of the charge as duplicitous, and as giving the jury no guide to determine the issue submitted. One of appellants’ grounds for a new trial was that the issue as submitted failed to confine the finding of the jury to the issue raised by the pleading and evidence and permitting the jury to speculate as to whether defendant (Tidwell) was guilty of negligence. In neither the objections to the court’s charge nor in the motion for a new trial do appellants specifically point out the omission to define negligence.

The charge, in our opinion, is affirmatively erroneous, in that it does not submit any one of the negligent acts charged, but submits negligence generally, and does not define negligence to the jury. No' special charge was submitted which undertakes to submit a proper charge or define negligence.

The charge is duplicitous, and, whatever may be said of the lack of definiteness in pointing out objections to the charge, it does specifically point out that the charge is duplicitous, by which we understand appellants to mean that the charge should submit to the jury separately and singly such acts of negligence as are pleaded and upon which evidence was offered, instead of, as was done, submitting to the jury, Was Tidwell guilty of negligence generally in the operation of the automobile at the time and place of the accident? Without discussing the ease at length, our Supreme Court, in Gulf, etc., Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183, and the Commission of Appeals, Section B, in Robertson & Mueller v. Holden, 1 S.W.(2d) 570, hold that, where the charge is merely defective or incomplete, or is affirmatively erroneous, an objection which sufficiently specifies the error will preserve the point on appeal, without the necessity of again directing ■ the court’s attention to the same subject by a special charge.

For the reason that the ■ charge does not! properly submit the issue of negligence to the jury, the case must be reversed and remanded. On another trial negligence should be defined.

The court charged the jury: “What damages, if any, do you find that the plaintiffs herein should recover that would fairly compensate the plaintiffs for the loss of their husband and father? Answer in dollars and cents.”

In this case the recovery as to appellants would be the pecuniary losé to appellees by reason of the death of their husband and father.

The petition does not allege the ages of George Wheeler, or of the wife, Myrtie, ap-pellee, and does not allege the ages of the minor children. The evidence shows that Wheeler at the time of his death was 37 years old, his physical condition good, a stout, strong, and normal man. We have not found in the record any statement as to the age of the appellee Myrtie Wheeler. One of the children, Bernice, married after the death of her father and before the trial of the ease. The evidence shows that Wheeler was a farmer, and at times worked off the farm, and that his average earnings for the last four or five years of his life would “be about three or four thousand dollars a year, each year, farming and working out.” Mrs. Wheeler testified: “He was supporting me and my children.” We have not found the life expectancy of either Wheeler or his wife, Myrtie, in the record. Nor does the evidence show the amount of money Wheeler bestowed upon his family for.any purpose for any .given length of time.

Where the jury finds for the plaintiffs in cases such as this, the recoverable damage is such sum as, if paid in hand at the time of the judgment, would fairly compensate appellees for the pecuniary losé they would reasonably have received from decedent during his life, which, in case of minor children, including the reasonable pecuniary value of the nurture, care, and education they would have received from decedent during their minority, if any, had he lived, but that no allowance should be made for grief or sorrow suffered on account of decedent’s death, or loss of his society, affection, companionship, or physical or mental pain suffered. Texas, etc., Ry. Co. v. Walker, 58 Tex. Civ. App. 615, 125 S. W. 99.

Now, we do not mean to hold that it is essential to prove that deceased actually contributed anything to the support of his wife and minor children for the law charges him with the duty of their support, a valuable right that can be enforced, and of which right they are deprived by his death; nor are they limited in the amount of recovery to such sum or sums of money as deceased probably would have contributed to them. The evidence shows that the deceased had bought land and was buying additional land, and was paying for it. Where the court states the correct rule for the amount of the recovery, as shown by the pleading and evidence, we think it would not be error in the charge to omit to state the facts the jury might consider in es-timating the lump recovery.

For reasons stated, the case must be reversed and remanded, and it is so ordered.

On Motion for Rehearing.

Appellants most earnestly contend that we are in error in holding that Tidwell was acting within the scope of his employment on returning to the Guitar farms after he had brought Billaba to Big Spring. Their contention is that Tidwell’s employment ended at Big Spring, on his return with Billaba, and that on his return trip from Big Spring to the Guitar farm he was not acting for his employers in the sense that his employers would be responsible for Tidwell’s negligence on his return trip, if he was negligent, in causing the death of Wheeler. We will further consider only that feature of the motion.

Appellants insist that our holding is not in harmony with Cunningham v. Railway, 51 Tex. 510, 32 Am. Rep. 632, Cunningham & Ellis v. Moore, 55 Tex. 373, 40 Am. Rep. 812, and Trachtenberg v. Castillo (Tex. Civ. App.) 257 S. W. 657.

In Cunningham v. Railway, Cunningham sued the International Railroad Company for personal injuries received while a passenger on the railroad. The defense of the railroad company was that the section of the road upon which the injury occurred was then in the exclusive possession and control of independent contractors and was then being operated for their benefit, and not by the servants of the International Railroad Company, and that the road was not then open for transportation of passengers, and that Cunningham as a passenger on such construction train then being operated by the independent contractor was not a passenger of defendant. The question discussed by the court was on the demurrer to that answer; that is, the liability of the railroad company for the act of the' independent construction contractors. The court held there was a marked distinction between the liability of the master for the acts of an ordinary servant in the usual scope of his duties as such, and that of an employee for the acts of an indepepdent contractor, and pointed out the reason for the difference in liability. •

In Cunningham & Ellis v. Mrs. Kate A. Moore, appellants were the lessees of the penitentiary and as such had custody and control of the convicts. Spencer O. Moore was a convict, and it was alleged that he was in charge of the lessees of the penitentiary, and that, while occupying a bunk erected by appellants, lessees, the bunk gave way and fell, from which he received injuries from which he died. The su\t was for damages against appellants as lessees. The court, after quoting certain articles of the statute and rules pertaining to the control and management of the penitentiary, among them that “no lease shall be made by which the control of the prisoners, except as to a reasonable amount of labor, shall pass from the state or its officers to the lessees,” etc., said, the testimony shows that, under the statute quoted, J. T. Echols, not one of the lessees, was appointed by the commissioners sergeant in charge of the convict camp to which convict Moore belonged, and that under his supervision and by direction of the commissioners the bunks in question were constructed, and that the convicts when turned in at night were under the exclusive control of Sergeant Echols, and that the lessees had no right to order the convicts off the bunk, by whose weight it was broken. We see no application of the facts in that case to the facts of the instant case.

The Traehtenberg-Oastillo Case is in point and was decided by this court. The writ of error was dismissed by the Supreme Court. The questions of fact are lengthy. We may state them briefly. The motortruck at the time of the accident belonged to appellants, and on the day and at the time of the accident was being driven by Tom Allen. Tom Allen was not in the regular employment of appellants, but was using the truck at times for his own use, and at times for the use of appellants, when called on for service by appellants. Tom Allen was permitted by appellants to keep the truck in his possession at all times, and to use the truck in going to and returning from his work, whether working for others or for appellants. On the day of the accident, Tom Allen had been working for appellants at their call, and in doing so used the truck, and at the end of that day he had finished his work for appellants and had not been called for further service for appellants. On the day of the accident and prior thereto, appellants had paid Tom Allen for his service and he had been discharged from their service until he should be again called for further truck service. While Tom Allen was returning the truck to the place where he kept it, the accident occurred. This court concluded from the undisputed evidence that Tom Allen was not in the employ of appellants in driving the truck to his home from the place where he had finished his service to appellants and had there been paid off and discharged. In deciding the case, we referred to Cunningham v. Ry. and Cunningham v. Moore, supra, not as being analogous in their facts, but as stating the test of responsibility of appellants under the facts of that case, Tom Allen, at the time of the accident, not being in the employ or under the control and direction of appellants after his discharge. In that case the court held that under the facts the relationship of employer and employee did not exist at the time of the accident.

In Berryman on Eaw of Automobiles, § 613, p. 688, in discussing the meaning of the phrase “in the course, or scope, of his employment” when used relative to the acts of a servant, it is said, “The test is whether tlie act dene was in the prosecution of the business in which the servant was employed to assist.”

In other words, was Tidwell, at the time of .the accident, engaged in serving appellants, or was he, in returning to the Guitar farm, after delivering Billaba at Big Spring, in the exercise solely of his own pleasure. We think his trip in returning to his place of employment, after delivering Billaba, was as much in the service of appellants as in going to Big Spring. We think it immaterial under the facts here that the automobile, driven by Tidwell at the time of the accident, belonged to Tidwell, if he was using it in the performance of a duty he owed his employers. The ownership of the automobile is simply an incident in the performance of his service; the thing done by the servant in the performance of a duty to his master is the ultimate act, and not the instrument with which he performs the duty that makes the master liable.

. It might be contended that in returning from Big Spring appellants contemplated that Tidwell would observe the rule of the road and not negligently run his automobile on the. wrong side of the road, and, toy doing so, injure a third person, and for that reason appellants would not be liable. But such is not the law. We need only refer to Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880, where it is held, in effect, that the master is held liable for the manner in which the servant performs the duty he is engaged to perform, if wrongful, and to the injury of another, although the master may have expressly forbidden the ■particular act.

We have discussed appellants’ liability since, under the record, the facts are undisputed, and appellants’ liability becomes one of law.

The motion is overruled.

Appellants request additional findings of fact. That motion is also overruled.