Clem Lumber Co. v. Fisher , 1935 Tex. App. LEXIS 693 ( 1935 )

Charles Fisher, a minor, and his mother, Mrs. Delphine Fisher, in a trial before a jury, recovered judgment against W. L. Gibbs, Jr., and Clem Lumber Company, a corporation, jointly and severally, for a total sum of $14,395.25, for damages growing out of certain personal injuries suffered by Charles Fisher as the result of a collision between a truck driven by Gibbs and an automobile in which Fisher was riding. Clem Lumber Company alone appealed.

The appellant assigns as error the refusal of the trial court to give an instructed verdict in its behalf. Giving the evidence that construction most favorable to appellees, the facts are these: Clem Lumber Company owned a truck that was more than 70 inches in width, which truck was not equipped with clearance lamps to mark the outline thereof, as required by Vernon's Ann. P. C. art. 827a, § 9 (Acts 1933, 43d Leg., p. 45, c. 20). This truck was regularly operated on the public highways of the state by the Clem Lumber Company in the daytime, but there was no evidence that it had ever been so operated at nighttime prior to the collision in question. W. L. Gibbs, Jr., was a bookkeeper for the Clem Lumber Company. He had no authority to drive the company's truck and had never before done so. On the night in question, which was Saturday night, the truck was stored in the lumber company's garage, and, as usual, the ignition locked and the keys deposited in the lumber company's office. Some time during the night, Gibbs, the bookkeeper, without the knowledge or consent of the lumber company, went to the company's office, to which he had access, secured the keys, took possession of the truck, and went on a drive wholly for his personal pleasure. While so driving he jammed the left front corner of the truck against an automobile in which Charles Fisher was riding and injured him. The trial court submitted several issues to the jury for the purpose of determining the amount of the damages suffered by the plaintiffs and whether or not the plaintiff Charles Fisher was guilty of contributory negligence, but submitted only one issue for the purpose of determining whether or not the defendants were responsible for the injuries suffered by Fisher. That issue was as follows:

"Special Issue No. 1. Do you find and believe from a preponderance of the evidence that the habits of W. L. Gibbs in drinking intoxicating liquor were known to the officials or manager of Clem Lumber Company prior to June 19, 1932?" To which the jury answered: "Yes."

The appellees in their brief concede that the evidence is insufficient to establish the liability of Clem Lumber Company on the theory of master and servant or principal and agent. They contend, however, that the judgment can be sustained on either one of two other theories, the first one of which is that the lumber company was negligent in failing to equip its truck with lamps as provided in Vernon's Ann. P. C., art. 827a, above cited, and that such negligence was the proximate cause of the injury to Charles Fisher. The above statute makes it unlawful for any owner to operate, or permit to be operated, on the highways of this state at nighttime, any vehicle of more than 70 inches in width that is not equipped with proper lamps to mark the outline thereof. It may be conceded, as contended by appellees, that it would have been negligence per se for the lumber company to have operated the truck upon the public highways at nighttime, or to have permitted the same to be so operated, in the absence of lamps to mark the outline thereof, as required by the statutes; but the lumber company was not so operating the truck at the time of the collision and did not permit the same to be so operated. Certainly it was not negligence for the company to own and have in its possession such a truck. So long as the truck remained in the garage where it had been placed by the lumber company, there was no danger of injury to any one. Consequently, the liability of the company cannot be sustained on this theory. Gordon v. Texas Pacific Mercantile Mfg. Co. (Tex.Civ.App.) 190 S.W. 748.

Appellees' second theory is that the truck unequipped with lamps, as required by the statutes, was a dangerous instrument, and Gibbs was a known habitual drunkard and consequently an incompetent driver, and the lumber company was guilty of negligence in permitting Gibbs to have access to the keys to the truck, and such negligence was the proximate cause of the injuries.

In the first place, we do not think the evidence is sufficient to raise an issue for the jury that Gibbs was a known habitual drunkard. R D. Gibbs, the local manager of the lumber company, and the defendant, W. L. Gibbs, Jr., were the only witnesses who testified concerning this matter. They were called as witnesses by the plaintiff. R D. Gibbs testified that he was a brother of W. L. Gibbs, Jr., and that he had never seen his brother take a drink of liquor in his life and had never known of his taking a drink. There were no circumstances tending to contradict his testimony on this point. W. L. Gibbs, Jr., testified that he was not a heavy drinker but a moderate drinker of alcoholic liqquors; that he had been a moderate consumer of alcoholic liquors for about three years, taking a drink on the average of about once a month. He testified that on the night in question, after going for a drive in the truck, he went to some place in the country and drank some beer. There is a little uncertainty in his testimony as to whether he drank two or four bottles of beer. There was no other evidence on this issue. This evidence was wholly insufficient to present an issue that W. L. Gibbs, Jr., was such an habitual consumer of intoxicating liquor as to constitute him an incompetent driver. Moreover, there was no proof that the corporation had notice of his habits of consuming intoxicating liquor. There was no evidence that Gibbs was intoxicated at the time he took possession of the truck. Neither was there any evidence that he had ever had an automobile collision prior to this one, nor that he had ever driven any other automobile while under the influence of intoxicating liquor.

But, if it be conceded that W. L. Gibbs, Jr., was an habitual drunkard, and that the lumber company knew this fact, and allowed him to have access to the office where the keys to the truck were kept, and that the truck when operated on the highways at nighttime, because of lack of equipment, was a dangerous instrumentality, yet it cannot be said that the conduct of the company in allowing W. L. Gibbs, Jr., to have access to the place where the keys to the truck were kept was, under the circumstances, negligence, nor that such negligence, if any, was the proximate cause of Fisher's injuries. The lumber company could hardly be required to anticipate that Gibbs would take possession of the truck wholly without authority and that he would operate it without the necessary lights upon the public highways at night while he was in a state of intoxication in violation of the law. 45 C. J. p. 936. The causal connection between the conduct of the lumber company in allowing Gibbs to have access to the office where the keys to the truck were kept and the injury caused by the operation of the truck by Gibbs was too remote. 30 Tex.Jur. 699; Seale v. G., C. S. F. Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; T. P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; Worsham Buick Co. v. Isaacs, 121 Tex. 587, 51 S.W.2d 277, par. 4, 86 A. L. R. 232.

In our opinion, the plaintiff has wholly failed to make out a cause of action against Clem Lumber Company. It appears that the case has been fully developed and that no useful purpose would be served by remanding it for a new trial. The judgment of the trial court in favor of the plaintiffs against the defendant W. L. Gibbs, Jr. is affirmed. In all other respects the judgment is reversed and judgment here rendered that plaintiffs take nothing against the Clem Lumber Company.