Christopher v. City of El Paso , 98 S.W.2d 394 ( 1936 )

On Motion for Rehearing.

Appellants have filed a very able motion ■attacking practically all of our holdings in the original opinion.

We shall not attempt to discuss any of their assignments except those relating to the question of whether Johnson, at the time of the accident, was acting as the agent of the city and as to the correctness •of the trial court’s action in rendering judgment non obstante veredicto.

Appellants contended on the former hearing that the facts in evidence were sufficient to show that Johnson was acting as the agent of the city, as a matter of law. We disagreed with such contention and held that if the evidence did not show as a matter of law that the city had parted with control of the airport that, at least, it raised an issue as to the capacity in which Johnson was acting on the date of the accident.

In their motion appellants now assert that if, as we suggested, the evidence raised a fact issue on the question of Johnson’s agency, then the trial court was in error in rendering judgment non obstante vere-dicto.

In view of the rule that judgments non obstante should only be rendered in cases where the court would have been justified in instructing a verdict, we must agree with this latter contention. Duvall v. Kansas City Life Ins. Co. (Tex.Civ.App.) 96 S.W.(2d) 793; Amarillo Transfer & Storage Co. v. De Shong (Tex.Civ.App.) 82 S.W.(2d) 381; article 2211, Revised Statutes, as amended Acts 42d Leg. p. 119, c. 77, § 1 (Veinon’s Ann.Civ.St. art. 2211).

It fohowa chat in disposing of the latter question we will be obliged to determine-whether the evidence shows Johnson to be the agent of the city, as a matter of law, or whether it raises an issue of fact as to the capacity in which Johnson was acting on the day in question.

Upon the question of agency appellants take the position that under article 1269h (Vernon’s Ann.Civ.St.), and section 71 of the City Charter, the city was bound to retain control and management of the airport and to perform the duties imposed by the statute. While it -is true that both the statute and charter provide that the airport shall be under the management and control of the governing body of the city and that the city 'shall have the management and control of the property belonging to it, we find nothing in either the statute or the charter which would in any way prohibit the leasing of the property acquired for airport purposes, and it is our opinion that the cited provisions can have no bearing upon the question involved.

Nor can we agree that the fact that. the ordinance passed by the city in 1929 had not been expressly repealed should control as to the question here presented. At most, it could only raise a presumption that the city had not parted with control of the airport, which ■ presumption would disappear before the positive testimony of the mayor that he, as such, had no control over it

Another contention seriously urged by appellants on the former hearing, and reasserted here in this motion, is that the evidence showing that Johnson had at one time been manager of the airport and in the employ of the city as such and that he was still managing it, the presumption arises that he was still the agent of the city.

This presumption cannot be indulged under the facts before us.

Presumptions are based upon some necessity, and in the absence of such necessity they will not be indulged, and courts will not go into the domain of presumptions where direct proof can be obtained. 22 C.J. § 25, p. 83; Skov v. Coffin (Tex.Civ.App.) 137 S.W. 450 (writ refused).

In the present case both the mayor and Mr. Johnson were called to testify by appellants, and certainly they cannot now depend upon presumptions to make out their case, when they had before them the two men who must have been in possession of all the facts relative to the status of Johnson at the time in question.

Appellants further contend that if the question of Johnson’s agency was not one of law, then the fact that both Johnson and the mayor were interested parties would make the question one of fact because of their interest. This rule might be applicable here except for the fact that appellants- called both Johnson and the mayor and made them their witnesses. As said by Justice Hall of the Amarillo Court in the case of Starkey v. H. O. Wooten Grocery Co. (Tex.Civ.App.) 143 S.W. 692, 694: “A party upon whom it is incumbent to prove an alleged fact cannot call his adversary as a witness to that fact, elicit testimony from him to the effect such fact has- no existence, and then call upon the jury to discredit the evidence of such adversary, merely because he is interested as a party.”

See, also, Gurley v. Pilgrim Oil Co. (Tex.Civ.App.) 275 S.W. 295, affirmed (Tex.Com.App.) 285 S.W. 283.

Appellants also attack the testimony of Johnson and the mayor as being mere conclusions, and therefore deserving no consideration.

In response to questions of counsel for appellants and on his direct examination, Mr. Johnson testified that he had been carrying passengers for hire at the airport since he leased it on May 1, 1933; that under his contract with the city, the trusties from the city jail assisted in cleaning the airport; that in 1930 an ordinance was-passed governing the airport; that a majority of the rules adopted were passed to-comply with rules of the Department of Commerce; and that he had (with the consent of the council) changed the schedule-of charges for storage adopted at that time.. On cross-examination he further testified that he managed the airport on a salary prior to May 1, 1933; that he had received no salary since that time; that after May 1, 1933, he returned no money to the city and paid it nothing; that since May 1,. 1933, his only connection with the city had been as lessee of the airport; and that after he paid the upkeep and lights and so forth,, the remainder of the money belonged to-him.

Mayor Sherman testified that from the date of the lease Mr. Johnson had no other connection with the city as an employee,, or servant or agent; that he was not on the-pay roll after that time; that Mr. Johnson was not employed by the city at the time of the accident to the Christopher boy; that at that time he was exercising no control over the airport; that when the city because of the depression found that it would be unable to continue the operation of the airport, Johnson agreed to operate it for what he could get out of it; that the rating-of the airport was changed in order that fewer lights could be used; and that Johnson has paid all the expenses of the ■ airport since the lease.

While some of the statements of these-witnesses may be conclusions, yet their testimony as a whole leads to the irresistible conclusion that a change in the relationship between the city and Johnson-occurred on May 1, 1931, and such change being shown, no presumption of agency arises from the fact that Johnson remained, in charge.

To constitute the relation of master and servant for the purpose of fixing; liability on the former for acts of the latter under the doctrine of respondeat superior,, it is indispensable that the person sought to be charged shall have the power and the duty to control the alleged servant while-in his employ, that is, have the right to-say not only what shall be done, but how it shall be done. 39 C.J. § 4, p. 35; and' § 1454, pp. 1269, 1270.

Under this rule the evidence of the mayor that he had no control of the-airport since the lease was executed would certainly be admissible.

From a careful reading of the entire statement of facts, we have reached the conclusion that appellants failed to establish the agency of Johnson, as a matter of law, or to present evidence raising an issue on that question.

In view of the conclusion, we adhere to our former holding and overrule the motion.