Untitled Texas Attorney General Opinion ( 1948 )

GENERAIL
June 2, 194g
HOn, ~HemerGarrison,Jr., Direater
Department of Public Safety
Austin, Texae Opinion NOi va5gs.
R0: The applicability of the
chauffeur’slicense re-
uirements af Article
2wb, v* c, S,.,te one
employed a8 a general
laborer and ywd man.who
oc~aslenallydriveahis
qploper’ a car carrying
passongora.
Dear’Colonel Garrison:
Xe quote from’your request-fer an’epinian as
follows, in part:
” would a.person employed as a
yard &‘a&4 general laborer who occasion-
ally drives his cmnloyer?s car with the em-
ployer and/or his family as passengers be
a ohauffeurn/rithlnthe definition ef Art.,
66$7b, Sec. 1 (o)~,V. C, S,)? (Parkthat-
ical addition ours)
Turning to Article 6687b V, C, S. .bei Acts
1941 47th Le Mature page 245 dhapter 173, we%nd
in S&ion 1 701, the kollewing defin$tion:
Chauffeur’ 6 Every per&on who i8
fl* ,1,
the driver for wages compensation or
, oh a motor vehi&e
hire, or for far.e
transportingpa638,engefd.v
Section 2 of the foregoing Act reads a8 fel-
lows:
. “No person, except those hereinafter
expressly exempted, shall drive any motor
vehicle upen a highway in this State unless
such,personhas a valid license a8 an oper-
ator, a commerclnl operator,
5 or a chauffeur
Hon. Homer Garrison,Jr*, Page 2, V-593.
- .
under the provisionsof this Acten
The question presented,then, is whether the
statute requires a person to secure a cbuffeurta li-
cense who drives a motor vehicle for his employer carry-
ing parsengersas an incident to the performance'ofhis
regular duties for which he is employed a'nd~
compensated.
In order to resolve this issue we deem it ap
propriateto note the legislativehistory ef the lieens-
ing statute in so far a8 it is applicable to "chauffeur*,
as the statutory definstionhas .undergonesubstantial
changes,
When first passed in 1917 as Acts 35th Legis-
lature cha ter 207 page 475 codified in VemonQi An-
notate4 C&vP1 Statuies as Article ,6687,a Wchauffeurn
was defined as:
11 one whose business er ocs,m--
tion ii ipiratinga mo%io*vehicle ?ZFZm-
FatSon, wages or hire. o o n (Emphasis
suppliedthroughoutthis opinion)
This statute was inte,rpreted by the Court of
Criminal Appeals in Matthewst. State, 85 Tex:Cr$m+ Rep.
469,'214 S. Ws 339 (19191,'as~ns2.requfriag a``chauffeur(8
license of one who drive8 a car as fan in&dent to his prin-
cipal duties or occupation.
This requirementwas carried foruard in Acts
1935; l+&thhLegislature,~2ndCalled Session page 1785,
chapter 466, wherein a nchauffei@ Wa8:deflned,as:
*Every person who'is employed~for the
rinci al purpose of operating a motor vehi-
b&r every person who drives a motor
vehicle while in use fer hire,"
However that definition,wasradicallythan ad
in 1937,bpActs 45th Legislature,page 752, cheater 3%9,
to define a "chauffeur"as:
"Anv nerson who 'oneratesa motor rehi-
~kee$&%%~wh$%? %r%````d%
contractor,'whetherbid in'salary or commis-
sion; and every person who operates,a 'aotor
vehicle while such vehicle is ifinosefor hire
or lease,"
Hon. Homer Garrison,Jr., Page 3, V-593;
Under the last definition sat out above, this
Department held by former Opinion No. 0-586, that an
employee who drives hi8 employer’s car as au incident
to his employment for which he is compensated,is re-
quired to obtain a chauffeur’slicense.
This opinion wa8 quoted.fromat length in
Maryland Casualty Co. v. Cronholm, 32 F. Supp.~371,ti
the Federal District Court for the Southern District
of Texas, opinion by Judge AMred. It was them said:
“There are no Texas decis~ionsconstru-
ing this.part of the statute as to whether
a .person,employed a8 was Brinkley, is a
1chauffeur’. The statutory definition is,
however, .verybroad. The.test 8eem8 to be:
(1) Did such person operate the motor vehi-
cle in whole or part time employment; (2)
was,he at such time an employee, servant
agent, or independentcontractor;and ($1
was he paid for such service?
,
“As applied to Brinkley, each of these
question's must be answered in the afflrma-
tive. He .operatedthe,truck; he was, at
such time, the employee and servant of the
insured; and he received pay for it. The
fact that Ino Dart of the salarY.Daidto
him was apportioned or allocated.as compen-
sation for such occasionaland incidental
operation of said truck’ &es not necessar-
ily mean that he was notepaid for such serv-
ice; only that a ortion of his pay was not
allocated expressPy for the service. He
id nevertheloes..Nor would the fact
wP8
thatYi-
8 only &ova the truck toccasionally
and incidentallyt,averaging not morethan
one hour per day, prevent hi8 coming within
the broad terms of the statute”. (Emphasis
by the Court)
In 1941, the presbnt definition of Wumffour*
became effective,and we are no% coufrontedwith the prob-
lea of whether it includes within'its scope an employee
who engages in incidental or casual duties as a chkffeur
for hi8 emplover. as WI8 Indimv the 1937 amendment;
or whether'it-rejuiresthat the emplbyee's d&es as a'.'
chauffeur be hi8 incipal duties or occupation, as wa$i,:j
true under the 1 Act and the 1935 Act.
.- -
. . _ .._
Ron+ Homer Uarriaon, Jr., ?age 4, V-593.
It will be observed that u&or the resent
definition we have neither the clear-cut requ I rement
that the o rator must have iOr his prinainal purpose
tho.eperat r en o? a motor vehicle for hire nor do we
have the atntitheti~.-requirement in the, de#inition that
an operator who’oparates a motor vehicle for w pur-
poemas an emplo ee or servant for cem naatlon or hire
is included. *s the prosoat statute !L icatos is that
a chuffour ‘is a udriver f*r wages, cemponsation or
hlro, ‘or for fare, of a motor vehicle transperting pa8-
eengers” .
Wo think ‘a mview of the decisions in other
jurladiotions,.~hav statutory definitfons of a ~ahauf-
four” which lro simi?a r to that of the T-s ~atatut.0,
will prove enlightening.
Ia state v, Wimmr 117 W. Va. &U’.lt6 S.E.
133 West Virginia Su~ome’C&t .it ?a8 held that a
,fieid superintendent ef an oil &any at a stated sal-
‘vary, who operated his omplb r!8 car tb tako him areuad
to variotis leases operated Fp his ample er gnd who.ec-
chsionallp hidled things in such cart L t ‘,uere needed
enthe.~various j&s, wa8 net a Chiioifeurwbe-needed a-:‘,-
iSiati6urt8 license withiiiii neaning lf a statute which
defined.‘*ohPutfeurn~as including ‘an ,wrsen who, o rates ‘: ’
for hire, er who recoires pay direct 3:y or indirect r.y te
operate, any motor vehicle or tractor, or who operates
a motor vehicle for the transportation of persons or
property ‘or both, for compensation, upon’the public high- ,.
wPg8”. ‘fhe Court spid:
WStatutes of the kind under considera-
tion must be strictly cobtrued, and not ax:
ten&d by im lication to parsoqs not coming
clearly with % their terms. A practical con-
struction of~the.statutory deflaitien o? the
word !chauffeur~, . . . la piew of the penal-
.ty for operating without such a license.
would include those who actually operatet$
the highways of the state an automobile, or
tractor, in which they have an interest, for :
hire or who are employed to ~operate the auto-
moblie of aaether, As indicated in the defi-
nition,.the fact that the rehicle~ is ~operated
pr;lr in comtemplatien of compensation ,con-
. . . ” ,~”
Hon. Homer Garrison,Jr., Page 5, T-593.
*If it had been the desire of the law-
making body to require all who operate an
automobile, as an incident to their regular
employmentto first secure a .chauffrurlsli-
tense It should have so wrovided". (Emphasis
supplied1
InDes Moines Rug Cleaning Co. v. Automobile
Underwriters,215 Iowa 246, 245 B. W. 215, an action
on an insurance policy involved an interpretationof
a definition of "chauffeur"which said:
"Any person who operates an iutomobile
in the transportationof persons or.freight,
and who receives any compensationfor such
services in wages, commission,or otherwise,
paid directly or indirectly,or who as owner
or employee operates an automobile carrying
passengers or freight for hire, including
driirersof hearses, ambulances, passenger
cars,,trucks, light delivery, and similar
conwyances?i
$he Court held:
”
. the term 'dhauffeurr,as used in
the s&;te means a paid operator'or employee,
that-is, a person who'is'employedand paid by
the owner of a motor vehicle to drive and at-
tend to the car* and does not include operators
who are not employed and paid for operating the
motor vehicle, and therefore does not include.
an employee who receives his compensationfor
services rendered other than the operation of
motor vehicles, although in performing;.
such ser-
vices he may incidentallyoperate a motor vehi-
cle?.
Of similar import; we cite the following cases:
State v. Depew ,175 &Id. 274, 1 A (2d) 627; Day P. Bush
18 La:App. 68i 139 So. 42; Comm. v. Cooper 19 Pai $st.
R. 271, 37 Pa. ho. Ct. 277; 42 C. J. 743 119;
r7cellent annotation on the subj,ectfad !!n105 A. ii It.
.
We have reached the conclusionthat the deter-
mination of whether anemployee is a *chauffeur*within
the definition set out in Article 6687b, Section 1 (01,
is a question of fact. The.elements include:
Hon. Homer Garrison, Jr., Page 6, V-593,
(1) Was the employee driving the motor vehi-
cle?
(2) Was the employee transportingpassengers?
(3) Was the employeeacting within the scope
of his employment,which contemplatedthat the duty of
driving the motor vehicle be paid for by the employer
through wages or compensationfor such duty?
Upon the last element, we add that the ques-
tion must be determinedby thenfacts in each individual
case, which precludesus from enunciatinga general stilt
that will govern all cases.
SUMMARY
Article 66d?b, V. C. S., applies to re-
quire anv erson to possess a chauffeur'sli-
oense who P1) drives a motor vehicle, ~(2)is
transportingpassengers,land (3) 1s~acting
within the scope of his employment,which con-
templates that the duty of driving the motor
vehicle be paid for by the through
wages or compensationfor Sue
- These.'elements
involve fact questions
to be determinedby the circumstancesof each
individual case. -'
Very truly yours,
ATTORNEY GENERAL OF TEXAS
.E>d
ATTORNEY GENERAL.
DJC:jmc