Prince v. Taylor

WALTHALL, J. In this case the plaintiff in the trial court, Joe H. Taylor, now ap-pellee, sued the defendants, H. Prince and his son, Harry Prince, appellants, for damages for personal injuries which he alleges he sustained by reason of the negligence of the defendants proximately causing his injuries. Briefly stated, the plaintiff alleges in his petition that he was struck by an automobile owned by defendant H. Prince, which at the time of the accident was being driven on Texas avenue in the city of Houston, or just at the corner of 'Main street and Texas avenue in said city. The petition alleges that his being struck by the automobile and the consequent injuries to him, of which he complains, were caused by negligence for which H. Prince would be liable, upon the following grounds: That at the time of the accident the car causing the injury was being driven by Harry Prince, son of H. Prince, either upon his own responsibility or under the direction of one Schell, whom H. Prince had employed as chauffeur and placed in charge of the automobile, with authority to drive same upon the streets of Houston, for the use and benefit of H. Prince’s family, of which it was alleged Harry Prince was a member, and that Harry Prince was likewise placed in charge of the machine by H. Prince, with authority to operate it. The petition alleged that Harry was an inexperienced and incompetent driver of tlje machine, and that Schell, in charge of the machine, negligently turned the car over to Harry and permitted him to operate same with resultant injury to plaintiff. The petition alleges that the injuries to plaintiff were proximately caused by negligence in one or more of several respects: (1) By Harry, as H. Prince’s agent, negligently operating the car, either in violation of the city ordinance, or by failure to exercise ordinary care; (2) by Schell, the chauffeur, and H. Prince’s agent, participating in such negligent operation of the car; (3) by negligence of the chauffeur in turning the car over to Harry Prince, an incompetent and inexperienced operator. The damages claimed are predicated upon suffering, mental and [827] physical, lost time, and diminished capacity to labor and earn money. Defendant H. Prince answered by general demurrer, general denial, and special pleas, in substance: (a) That, if plaintiff was struck by an automobile owned by H. Prince, same was intrusted exclusively into the hands of a competent chauffeur, and, unless at the time of the accident same was being operated by said chauffeur, it was not being operated under the authority or for the use and benefit of H. Prince; (b) that plaintiff was himself guilty of negligence contributing to cause his injuries; (c) that the injuries to plaintiff were proximately caused by an intervening agency, in that, it being Saturday afternoon, with the streets crowded, a street car of the Houston Electric Company had been stopped at the corner, or near thereto, just before making the turn from Texas avenue into Main street, which street car prevented the passage of pedestrians who were going in the direction in which plaintiff was going; and that said street car suddenly started around the curve at that point, causing persons who were then and there near said street car to suddenly step backward or otherwise in the path of the moving automobile, in order to avoid the rear end of said street car, which swung outward toward such persons as the street car took the curve; and that the driver of the automobile, under such circumstances, undertook to turn said automobile so as to avoid striking and injuring such persons so moving out of the path of said street car; and that in doing so said automobile was caused to come in contact with plaintiff, if plaintiff was struck by said automobile. It was alleged that the starting of the street car, with the consequent moving of pedestrians to avoid its outward swing, was the sole proximate cause of injuries to plaintiff; there being no negligence of any persons for whom the defendant H. Prince would be liable on the occasion. After a careful examination of all of the evidence offered on the trial, we find that the following facts appear without dispute: First. That appellee was injured, and that his injuries were due to the collision of an automobile with his person on the date alleged. Second. That the accident occurred at the intersection of Main street and Texas avenue in the city of Houston, about 7 o’clock in the evening on a Saturday, a time when that place was and is always the most crowded place in the city, both in the matter of moving people and moving vehicles. Third. That the automobile which injured plaintiff was owned by H. Prince, was then being driven by his son, Harry Prince, under the supervision and direction of the chauffeur of H. Prince. Fourth. That the automobile had been purchased by H. Prince for the use of his family, and he, his wife, and his son Harry constituted his family. That his wife and son and two guests were taking a pleasure ride on the occasion in question. Fifth. That the car and chauffeur were subject to the wife’s orders. Sixth. That, for about two weeks, Harry had been learning to drive the car under the immediate tutelage of the chauffeur, and that on the occasion of the accident the chauffeur was sitting beside Harry, advising and directing him, and sounding the horn for him on occasion. Seventh. That defendant H. Prince knew that Plarry was learning to drive the car, and that he had been running the car, was present a number of times when the fact of Harry’s running the car was mentioned, had ridden in the car on at least one occasion when Harry was driving, and made neither protest nor comment. Mrs. H. Prince had ridden a number .of times when Harry drove, advising and directing him. Eighth. The legal limit of speed on Main street at and near the point of the accident was eight miles per hour, which had to be reduced to four miles per hour in turning corners. Ninth. It is undisputed that in turning the comer the automobile was exceeding the speed limit for turning corners, the speed being placed by Harry and the chauffeur at from five to six miles an hour, and the other witnesses varying up to twenty miles per hour. Tenth. It was undisputed that it was the moving automobile that injured plaintiff. Eleventh. The automobile was a five-passenger Packard, with a wheel base of 129 inches, which, with its overhang, would give the machine a total length of more than 12 feet. Twelfth. At the time of the accident, plaintiff had walked up Main street on the eastern sidewalk, and had just started across Texas avenue, toward the Binz Building, in the same direction and on the same side of Main street, when he was struck by the automobile, just as it turned the comer. Thirteenth. He was rolled or dragged several feet by the machine. The machine ran from 50 to 75 feet beyond the point of collision before the driver was able to stop it. Fourteenth. A lady, named Mrs. Walker, was badly injured by the same machine at the same time and place. [1] Appellant’s first assignment of error complains of the tenth paragraph of the court’s general charge, in that said paragraph instructs the jury that I-I. Prince would be liable for the negligent acts of Harry Prince, if any, in the operation of the automobile, without properly submitting to the jury anywhere in the charge the question of whether or not there were such relations between I-I. Prince and Harry Prince as would amount to an agency, permitting the application of the doctrine of respondeat superior. The paragraph of the charge complained of reads as follows: “Guided by these instructions, if you believe from a preponderance of the evidence that the automobile was being run at such rate of speed and under such circumstances as, you have heretofore been instructed, constitutéd negligence, and you further believe that plaintiff was struck by an automobile belonging to defendant [828] H. Prince, and that plaintiff was injured by being so struck, and believe that the negligence of those in charge of the car, or of either the chauffeur or Harry Prince, if negligence you find, was the proximate cause of plaintiff’s being injured, the plaintiff is entitled to recover; and, unless you find for defendants upon instructions given in other parts of this charge, you will return your verdict in his favor against either H. Prince or against Harry Prince, or against both, according as you find liability under instructions hereinafter given.” The three propositions under this assignment are to the effect that, before H. Prince could be held liable for any negligence of Harry Prince, the evidence must either show as a matter of law, or raise the issue as a fact, that Harry was H. Prince’s agent, acting within the scope of his agency, in the operation of the car, and that the fact of Harry’s agency was an issuable fact and not undisputed to be stated by the court as a matter of law, and that it was prejudicial error, as the charge nowhere else presented to the jury appropriate instructions correctly informing them as to the circumstances under which H. Prince might be held liable for negligent acts of Harry Prince. If it were a necessary fact, to be shown before H. Prince could be made liable for the negligent act of Harry Prince in driving the car at the time and place of the accident, that H. Prince should have given Harry permission to drive the car, or should have given Schell, the chauffeur, permission to let Harry drive the car, the assignment would present a serious question, as both appellant’s answer and his evidence on the trial dispute the question as to his permission to any person other than the chauffeur to drive the car. However, he admits his ownership of the car; admits that Schell was his chauffeur, and at the time and place of the accident was in charge of the car; admits that the car was a family car, and that the family used it altogether, and that at the time of the accident the car was in charge of the chauffeur, and that his wife and Harry, with friends, were in the car and taking a drive; admits that the chauffeur was invariably under the instructions of his wife. Appellant defends the action against his liability for Harry’s negligence on the ground that he had given his chauffeur a general charge that no one else should drive the car. In' the case of Burnett v. Oechsner, 92 Tex. 590, 50 S. W. 563, 71 Am. St. Rep. 880, the court, quoting from Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902, states the law to be that: “To hold the master liable for the act of his servant, it is not necessary that the servant should have the authority to do the particular act. The act of the servant may be contrary to 1ns express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business,-and for the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the duty he is engaged to perform, if wrongful and to the injury of another, the master is liable, although he may have * * * forbidden the particular act.” To operate the family car of H. Prince on. a pleasure drive for the family was admitted to be within the scope of the general authority of the chauffeur, Schell. If he (Scholl), acting within the. scope of his general employment, as driver of the car, undertook to-operate the car through Harry Prince, although instructed by H. Prince not to do so, it would still be the act of H. Prince, and it would not be necessary to further show the agency of Harry Prince than to show the agency of Schell, that he permitted and assisted Harry Prince, as the undisputed evidence shows, to drive the car at the time and place of the accident. The above principié-is further illustrated in the case of Reid Auto Company v. Gorsczya, 144 S. W. 688. Could the owner of a car relieve himself of liability by instructing his driver not to drive the-ear at an excessive rate of speed and to exercise ordinary care or to drive on certain streets and not to drive on others, if a failure to obey instructions caused injury to others? We think not. No more could he by instructing his driver not to permit an inexperienced person to drive the car. If we eliminate from tire case the idea that the general instruction of the owner of the-car to his chauffeur to the effect that no other person should operate the car, we then have presented the question of the owner’s liability for injury inflicted to another through the negligence of one put in charge of the car by the servant to perform the duties of the servant. It seems to us that the act of the servant in doing so would go to the mode in which the servant performs his-duty to the master. From the principles announced in the cases above quoted, we think it quite clear that to render H. Prince liable for an injury inflicted on the appellee through the negligence of Harry Prince, in driving the car, with the knowledge, consent, and under the direction of Schell, and -while performing Schell’s duties, it would not be necessary that the evidence show agency of Harry Prince, separate and apart and independent of the agency of Schell. We overrule appellant’s first assignment of error. The authorities above quoted, as we construe them, render it unnecessary for us to further discuss appellant’s second, third, and fourth assignments of error. [2] Appellant’s fifth assignment of error complains of the fourteenth paragraph of the court’s general charge, but copies the twenty-fourth paragraph. It is true, as stated in the assignment, that the paragraph complained of (the twenty-fourth) tells the jury to find for both defendants, if they should find that plaintiff stepped back to get out of the way of the swing of the car and that, in doing so, he put himself in the path of the approaching automobile, and at a time and place when [829] and where those in charge of the ear could not by exercise of ordinary care, in the employment of the means at hand, stop the car or guide it away from the plaintiff, before he was struck, without submitting to the jury the question for them to determine whether the stepping back by plaintiff was the proximate cause of plaintiff’s injury. The charge was one of which the plaintiff might have complained, but not the defendants. The defendants would not have been entitled to a verdict if the jury had found for them every fact submitted to them in the paragraph, but the plaintiff would, in addition, be entitled to have the jury say, before they could find for the defendants, that the stepping back was the proximate cause of his injury. The assignment is overruled. [3] The sixth assignment complains of the refusal of the court to give requested charge No. 12. There was no error in refusing to give the charge. The charge requested the court to tell the jury to find for the defendant if they should believe from the evidence that, as the automobile was rounding the curve at the intersection of the streets, a street car then and there started in motion to make the turn from Texas avenue into Main street, and that the rear end of the street car swung outward toward Mrs. Walker, causing her to step back into the path of the moving automobile, and that the driver, in an effort to avoid striking Mrs.' Walker, turned the car from her and struck the plaintiff, and, if the jury should find that the start of the street car causing the movement of Mrs. Walker was the sole proximate cause of plaintiff’s injuries, the jury would return á verdict for defendants, and that regardless of any question of negligence on the part of defendants in driving the automobile at that time and place, so as to necessitate the sharp turn of the car from Mrs. Walker. The jury might have thought that it would not be in the exercise of ordinary care for defendants to undertake to drive the car at all at that place under the circumstances then existing. They would be the sole judges, and the charge, if given, would have withdrawn the issue from them. [4] The seventh assignment complains of the refusal of the court to give requested charge No. 6, to the effect that, unless they found that the speed of the car at the time and place of the accident was the proximate cause of plaintiff’s injury, it would be immaterial that the car was then exceeding the speed limit. The requested charge announces a correct principle of law; but we believe that paragraphs 10 and 11 of the general charge taken together sufficiently presents the issue to the jury, and the assignment is overruled. [5] Defendant in his eighth assignment complains of the court’s refusal to give requested charge No. 7 to the effect that, if the accident causing the injury arose out of Harry Prince’s improper and unsafe operation of the automobile, resulting from his inexperience as a driver, and not from his want of ordinary care in an effort to properly operate the car, and that Schell believed him to be competent, and that a person of ordinary prudence would have considered him competent under the same circumstances and permitted him to drive the car, plaintiff could not recover of appellant. The assignment is based on the theory that Harry was an employe of appellant, and that appellant exercised ordinary care in selecting Harry as a driver of the car, and that the injury to ap-pellee was occasioned wholly through Harry’s incompetence as a driver of the car at the time and- place of the accident. The plaintiff’s answer does not tender such’ an issue as a defense, neither does the evidence. The plaintiff did assign as a ground of negligence Harry’s incompetence as a driver,, and the court submitted that issue to the jury in the seventeenth and eighteenth para- ■ graphs. If the law was as appellant suggests in the assignment, it would make appellee’s rights to recover depend entirely on what Schell thought of the competency of Harry as a driver of the ear. Suppose the appellant had thought .himself competent to operate the car, but in fact was not, and that his incompetence caused the injury, could it be said that his mistake of judgment as to his competence, however honestly made, would alone be a complete defense to an action for damages caused? We think not. [6] think the evidence of the plaintiff as to his present physical condition as a re-reof the injury, and Dr. Howard’s opinion, to the effect that if appellee’s knee at the time of the trial was still sensitive upon use, and that if appellee has to rest it upon a pillow at night, he could not- do active work, the court was not in error in submitting the matter of future diminished capacity to earn money as an element of damage as a probable result; Finding no reversible error, the judgment is affirmed Affirmed.