Guitar v. Wheeler

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 <of Wheeler. Tidwell answered by general denial and contributory negligence of Wheeler. On special issues ’submitted, the jury found that Tidwell, at the time and place and in the manner testified to, was guilty of negligence in the operation of his car, and that such negligence was the direct and proximate cause of the death of Wheeler; that Tidwell, on the occasion in question, was acting within.the scope of his employment as foreman of the farm of defendants named, trustees. The jury stated the damages found; the jury also found that Wheeler was not guilty of contributory negligence at the time of the accident in which he was killed. The court entered judgment in favor of plaintiffs against Tidwell individually, and against the three Guitars named in their respective capacities as trustees of the Guitar Trust Estate, but not personally. The Guitars, as trustees of said estate, prosecute this appeal. Opinion. The case must be reversed on appellants’ propositions 5, 6, and 7, but, in view of another trial, we think best to express our view on the other issues presented. Appellants submit that the evidence is wholly insufficient to show that at the time of the accident .causing the &eath of Wheeler, Tid-well, the driver of the ear that struck Wheeler and killed him, was engaged in any business of appellants, or was acting within the scope of his employment, or was then engaged in any business for which he was employed by appellants, and, for reasons stated, that it was error to refuse to give appellants’ peremptory charge instructing the jury in their favor. Appellees’ petition alleged that Tidwell, at the time and place of the accident, and in driving the car that struck and killed Wheeler, was the agent of and in the employ of appellants and in the due course of the business for which he was employed. The court submitted, and the jury found, that Tidwell at the time of the accident was acting within the scope of his employ [327] ment, and that finding is the basis of appellants’ liability. The proposition necessitates a review of the evidence as to the service Tidwell was performing for appellants in driving the car at the time of the accident. A general employment of Tidwell by appellants, a® foreman, on the farm operated by appellants, would not of itself be sufficient to show appellants’ liability; the evidence must show that in driving the car at the time of the accident Tidwell was performing some service for appellants within the scope of his employment as foreman of the farm. The facts, as we view the record, are uneontroverted, and are as follows: The circumstances under which Wheeler was killed occurred on the 26th day of December, 1928. Tidwell at that time was in the employ as general foreman on the large farm of the Guitar Trust Estate, in Howard county, under the management and control of appellants, as trustees; the estate being a family affair and owned by the members of the Guitar family. The Guitar farm is situated some fifteen miles north by west from Big Spring. In the morning, on the day in question, Tidwell, with his wife and children, drove to Big Spring in an automobile. The purpose of his trip to Big Spring on that occasion was that his wife might do some shopping, but on no business for his employers, the Guitars. Shortly after reaching Big Spring, Tidwell met a Mexican man named Billaba. The meeting with Billaba was casual and not by previous appointment. Billa-ba asked Tidwell 'about some grubbing to be done on the Guitar farm. The result of the conversation was that Tidwell, in the morning of that same day, took Billaba in the ear out to the farm where the grubbing was to be done, taking his family with him at the same time. It was a paid of his duty as foreman of the Guitar farm to have the grubbing done, and, in taking Billaba to the place of the grubbing, Tidwell was in the performance of his duty as foreman. After showing Billaba the grubbing to be done, Tidwell took his family on to their home, taking Billaba with him, and then, in the afternoon of the same day, returned to Big Spring in the car, bringing Billaba with him. The evidence is not clear as to whether Tid'-well, in taking Billaba to the place of the grubbing, agreed to bring him back to Big Spring, but from the evidence we find that he did so agree; it is clear that he did bring him back. After remaining in Big Spring several hours at that time, Tidwell, while returning to his home in the ear on the public highway, struck and killed Wheeler. The question pre-fented is: In returning to his home, was Tid-well at that time, in the course of his employment as an employee of appellants? We think the facts stated, borne out by the evidence, were sufficient to take the issue to the jury. Had Tidwell left Billaba at the farm, or, having brought. Billaba by Big Spring, had the accident occurred at Big Spring after Tidwell had returned Billaba to Big Spring, and before he had started on his return to his home, a different question would be presented. We think it was within the scope of Tidwell’s employment in returning to his farm headquarters home after having taken Billaba back to Big Spring. It could hardly be said that after returning Billaba to" Big Spring Tid-well’s return trip home was for his own convenience. Pierce-Fordice Oil Ass’n v. Brading (Tex. Civ. App.) 212 S. W. 707. It was an issue for the jury and not the court. It is true, as 'suggested by appellants, that, while Tidwell was at Big Spring and before starting on this return to his headquarters, he did turn aside from his master’s service, but the negligent act causing the death of Wheeler did not occur while he was so turned aside, but after he had resumed his service and was on his home trip. We have reviewed the cases cited by appellants and think none of them are in point on the facts here. The liability of appellants is to be determined by the application of the general principles of the law of master and servant. As suggested by appellants, the burden is upon .appellees to show that Tidwell did the negligent act causing the death of Wheeler while acting within the scope of his employment. The act must be. done in furtherance of the master’s business and for the accomplishment of the object for which Tidwell was employed. Beyond the scope of his employment the servant is as much a stranger to the master as any third person. The court instructed the jury: “Special Issue No. 3: Do you find from a preponderance of the evidence that W. B. Tidwell, in making the trip to Big Spring and back to his farm on the afternoon of December 26th, 1928, was acting within the scope of his employment as foreman of the farm of defendants, John Guitar, Sr., John Guitar, Jr., and Repp Guitar, Trustees? Answer yes or no.” Appellants suggest that the charge was duplicitous, that it submits a mixed question of law and fact, was confusing and misleading, in that it gives to the jury too wide latitude to determine the term “scope of employment,” and does not confine the jury to the issue actually made as to whether or not Tidwell was, at the time of the accident, engaged in. furtherance of appellants’ business or any work of appellant. Except as to the duplicity feature of the charge, which we will discuss later, we do not think the objections ai’e well taken. By the verbiage of the charge, the jury is confined to the trip made “in the afternoon” of that day. All the evidence shows that the first trip Tid-well made was with his family and was in the [328] forenoon, and that the trip with Billaba, both going to Big Spring and returning to his home, was in the afternoon; the circumstances of the afternoon trip were the only ones involved here, and the only ones referred to in the charge. . We think it was proper to submit the afternoon trip as a unit, since the jury must consider the circumstances of that entire trip in determining the point submitted, whether at ■the time of the accident Tidwell’s trip in returning to his farm headquarters was an act within the scope of his employment as foreman of the farm. If we are not mistaken in that, the charge was not objectionable other than being duplicitous. The fact of returning Billaba to’ Big-”Spring under the circumstances here ■ is essential in determining the point at issue. We think the expression used in the charge “within the scope of his employment” is not a mixed question of law,and fact, as submitted by appellants ; nor do we think the expression should necessarily have been defined by the court in submitting the special issue. We have found no case so holding. No general rule can be formulated, which will determine in each case whether the servant was acting by reason of, or within the scope of his employment; the authority from the master generally being gathered from the surrounding circumstances in evidence. C. J. vol. 39, p. 1283, under par. 1472. Where the servant was doing some act in furtherance of the master’s business and which act was his' duty to his master to perform, such as returning in his automobile under the circumstances in evidence, it would be for the jury to determine from all the evidence, and not the court as a matter of law, whether such returning to his home would be an act within ■ the scope of his employment. In answer to the question, “Was it your duty to take that Mexican (Billaba) out to see that stuff (grubbing) and bring him in here (Big Spring)?” Tidwell answered: “It was my duty, yes. That is a fact, that grubbing out there was on the Guitar ranch, yes. I was wanting that grubbing - done, yes. * * * I was having it done to get wood. * * * I was not going • to pay for the grubbing out of my own pocket, no. Mr. Guitar was to pay for the grubbing, I suppose.” The court was not in error in refusing to give appellants’ charge No. 1, a peremptory charge in appellants’ favor. The evidence was sufficient to take the case to the jury. Nor was it error to refuse submitted charges 2 and 3, the first asking whether Tidwell was engaged in any business for appellants after he had arrived at Big Spring in the afternoon of that day, and up to the time he started home. It was immaterial. No. 3 inquired whether Tidwell, at the time of the accident was “actually engaged in any business in behalf of defendants.” The issue was sufficiently submitted by the court in the court’s charge No. 3, above stated. The court refused appellants’ charge No. 4, asking whether, at the time of the accident, “Tidwell was engaged in his own business and for his own account.” Appellants contend that the charge submitted their theory of the case, which had not been done by the court’s charge. The theory of appellants is that at the time of the accident Tid-well was engaged in a mission of his own, in which appellants were not concerned, and that the affirmative of that issue should have been submitted. We think it was not error to refuse the charge. Whatever other business Tidwell might have had of his own and for his own account, it was wholly immaterial where the uncontroverted evidence shows, as here, that at the time of the accident he was also acting within the scope of his employment as submitted in the court’s charge. We have discussed issue No. 1 submitted by the court, but only in determining whether the motion for a new trial should have been granted on the grounds stated in the first proposition. The case should have been submitted to the jury on some one or more of the negligent acts complained of in appellees’ pleading, and upon which evidence was offered. This was not done, and appellants assigned error to such failure in their fifth proposition. In submitting the case to the jury, the court did not submit any one or more of thq negligent acts charged as a guide to the jury in determining whether there was negligence on the part of the driver of the car in causing the death of Wheeler; nor did the court define negligence. The failure to define negligence is assigned as error. We will discuss the two propositions together. Article 2189 of the statute provides that the case shall be submitted upon issues raised by the pleadings and the evidence in the case. The special issues must be submitted distinctly, and, where more than one issue is submitted, they must be submitted separately. The same article of the statute provides that in submitting special issues the court -shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to pass upon and render a verdict on such issues. The court submitted the issue of negligence generally, but omitted to define negligence. Appellee complained of several acts of negligence as causing the collision resulting in the death of Wheeler, viz.: ' Excessive speed; intoxication of Tidwell, the driver; violation of the law in turning to the right > 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. [329] 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.