Norvell Service Company v. Spell , 1956 Tex. App. LEXIS 2094 ( 1956 )

WALKER, Justice.

This action is for damages, for personal injuries received on July 17, 1951, by the plaintiff, Fullman C. Spell, in a collision between a truck driven by him and a passenger automobile driven by the defendant Burt Stone. The cause has been tried twice before but the record shows nothing about what happened at these trials except that certain persons did not testify. At the trial now under review'the jury found that the collision was caused by Stone’s negligence. Stone was an employee of .the defendant Norvell Service Company and the jury found that at the time of the collision Stone was operating his vehicle in the course of his employment with said defendant. The jury assessed certain damages of Spell at $35,000. On this verdict and on a stipulation concerning other items of damages, the trial court rendered judgment in behalf of plaintiff against both defendants for $37,113.14, and apportioned a part of this recovery to a workmen’s compensation insurer which had intervened. The defendant Norvell Service Company has appealed from this judgment.

Points 1 and 2 attack the sufficiency of the evidence to support the finding that at the.time of the collision Stone was operating his automobile in the course of his employment for Norvell Service Company. The plaintiff has made some question about the effect to be given these points; but this involves the intention of the appellant, and to determine this intention, we read these points together and, having done so, we construe them as meaning that Point 1 assigns the question of law, whether there is any evidence to support this finding, and that Point 2 invokes this court’s jurisdiction to determine the sufficiency of the evidence as a matter of fact. The testimony relevant to the question, whether Stone was operating his automobile in the course of his employment, may be summarized as follows:

. The defendant Norvell Service Company reworked oil wells for other persons and for this purpose operated several drilling rigs which it owned. One of these rigs was in operation near Gilchrist when the collision occurred and, according to Stone, it had been operating there for about three months before that date. During this period, defendant Stone was an employee of Norvell Service Company, and was one of the crew working this rig.

The evidence does not show what other operation Norvell Service Company was conducting or where the same was situated.

Stone was married and had several children and his family resided near Fannett. The distance between his home and his place of work at the rig was about 40 miles, and the highway on which the collision in suit occurred was the only road by which Stone could go to and fro between his place of work and his home.

On the day before the collision, Stone left his place of work and went to his home, using for his transportation an automobile which he drove himself. He stayed at home with his family until he had eaten lunch on the day following. Then he left his home, driving the same automobile and riding alone, and proceeded toward his place of work. He first came to the town of Hamshire and there had a transaction with a merchant named Rollins. Stone said that he bought some tobacco. Rollins said that he loaned Stone $5 for expenses but did not remember whether Stone bought anything. Stone next came to the town of Winnie, and there, at Syphrett’s automobile service station, he bought a tire and a tube for the tire and had the tire mounted on his automobile. The collision in suit occurred after he left Winnie and when he was still about IS miles from the rig.

The price of the tire and tube which he bought from Syphrett he charged to the account of his employer.

There is a conflict in the testimony (all of it from witnesses for appellant’s employer) about the cause of Stone’s leaving his place of work and his reason for returning to it at the time he did. Stone and Brice, the superintendent, said that the work at the rig had come to a temporary halt while a cement plug in the well hardened. Twenty-four hours was required for this. Stone’s presence during this period was not necessary and he took advantage of the cessation of work to go home. His purpose, according to his testimony and that of superintendent Brice, was to visit his family and to get some clean clothes. The plug was to be drilled at 6 P.M. on the day when the collision occurred and it was Stone’s duty, and he intended to be at the rig at that time in order to participate in that work.

On the other hand Evans said that he was one of the drillers at this rig and that his period of work ended at 3:00 o’clock on the afternoon of the day of the collision, but that he had left a few minutes earlier; that one J. A. Brice had relieved him as driller; and that when he, Evans, left the rig it was running. He said that he had been running the rig, that the rig had been running until he left, and that the crew had been “working the well over”, and that Brice stepped in his place and went on the job. Concerning Stone, he said that superintendent Brice had relieved Stone so that Stone could go home and clean up, that Stone was returning to take up the performance of his duties, and that Stone was supposed to be back there that afternoon. Rollins testified that Stone had told him during the transaction at Hamshire that Brice had relieved him, and after first testifying that Stone had stated that he was returning to relieve Brice, Rollins said that he was not sure and also that he had assumed this from Stone’s statement that Brice had relieved Stone. He also testified that Stone told him that he, Stone, was going back to the job.

Stone said that during the three months he had been with the rig at Gilchrist he had gone home when he could.

Stone had no mission to perform for his employer on his trip home and his employer did not communicate with him between the time he left the rig and the time of the collision. Stone carried no thing and transported no person in the car for his employer on this trip and, putting aside for the moment the purchase of the tire, there is no affirmative testimony that Stone undertook to do anything for his employer on this trip. If the testimony about Stone’s purpose in leaving the rig is not believed, his object and his relation to his employer's work must be deduced from circumstances.

The automobile which Stone drove belonged to him. It was a two-door passenger sedan, of Chevrolet make.

The testimony concerning the title of Stone’s position of employment and the nature of his duties is in conflict, but there was testimony which authorized the jury to find that, as a term of his contract of employment, Stone was required to keep his automobile with him at the rig so that he might use it to fetch small parts or tools which were needed for the operation of the rig; and also to bring personnel to the rig, and it was proved that Stone had used his automobile for this purpose whenever this was necessary. When he did use the automobile for such purposes, he kept a record of his expenses and his employer, pursuant to agreement, reimbursed him for these. Stone’s purchase of the tire and tube on the day of the collision was explained as an incident of his having carried a person in his automobile for appellant employer. Stone said that he had gone to Winnie b> get a man for Norvell, that the trip was made four or five days before the collision and that a tire had blown out while he was making this trip; and both he and Norvell, President of Norvell Service Company, said that he, Stone, had asked Norvell to replace it and that Norvell had authorized him to do so by purchase at Syphrett’s station. Stone said that he charged the cost of the tire and tube to his employer’s account by virtue of this authority. It seems a necessary inference from the circumstances that the tire became Stone’s property.

Norvell said that when Stone requested authority to replace the tire, he said that he had no spare tire.

However, it does not appear that anybody other than Stone ever drove or exercised control over the automobile or had a right to do that. There is no testimony that the employer was a lessee or a bailee of the automobile, or that anybody considered the automobile to be a part of the employer’s equipment. As we construe the testimony the automobile was a part of Stone’s equipment, not of his employer’s.

The Norvell Service Company agreed to pay and did pay none of the costs of operating the automobile except those incurred on a mission in said Company’s behalf. Under the agreement for reimbursement of Stone, all other costs of operation were to be paid by Stone from his own funds.

Stone had to stay with the rig at Gilchrist while it was operating, unless he was relieved or away on a mission, and while with the rig was subject to call whenever his services were needed, throughout the twenty four hours of the day. In order that he might be available in this way, the appellant employer provided him with living quarters in an automobile trailer, and during the time he had been with this rig at Gilchrist he had lived in this trailer except on the occasions when he was released from duty. It may be inferred that his holidays came at irregular intervals. The jury were authorized to find that an employee such as Stone was necessary to the continuous operation of the rig and that if Stone was relieved from duty somebody else had to take his place. However, there is no evidence that Stone, himself, had any unique ability (he said he had done hard labor all his life) and the description of his duties does not indicate that these duties required unique or special qualifications. In fact, the duty most emphasized in the testimony is one to fetch tools and part$ of machinery. ;

Stone’s testimony shows that if he had received an order from his employer while he was with his family or on his way home or while returning to his work he would have obeyed it.

Norvell Service Company did not provide its employees with transportation between their homes and the rig at Gilchrist. Norvell said that the employees were required to provide this for themselves. Brice, the superintendent, gave testimony about Stone which corroborated Norvell and Stone’s testimony corroborated Norvell. We have mentioned Stone’s testimony that he paid the expense of his journey home and of his return to his place of work. Evans testified he lived at Fannett and that he was returning to his home in his own automobile on the day of the collision.

Finally, Stone testified that he had collected compensation benefits, claiming to be on duty for the appellant employer at the time of the collision. This testimony was admitted solely to impeach Stone, who had testified that he was not on duty at that time.

Opinion

Point 1 will be first considered. The charge defines the term “acting within the course of his employment”, but we have to apply this definition according to decisions which apply its elements and we will, therefore, refer in our discussion to decisions instead of to the definition. In International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, at page 520, 17 S.W. 1039, 1040, the court said of the servant’s act that for it to make tire master liable “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 examples of the way in which this rule has been applied see: Galveston, H. & S. A. R. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367; J. C. Penney Co. v. Oberpriller, 141 Tex. 128, 170 S.W.2d 607. This rule makes material the purpose Stone had in driving his automobile at the time of the collision; and we will first determine the effect to be given the evidence if all of it is considered and the testimony about Stone’s purpose is not rejected.

Stone's purpose in leaving the rig, as the testimony describes it, was wholly his own, for his own benefit, whether the statement of that purpose by Stone and Brice or the statement by Evans be true. Stone either went home to visit his family and to get some clean clothes or else went home to clean up. He was in his own car, paying his own way and expecting to begin work at the rig at a definite time, and he had no notion that he was performing any service for his employer. Although either purpose would, under the circumstances, have a bearing upon the efficiency with which Stone performed his work for his employer, neither would be, in contemplation of law, in furtherance of the master’s business and to accomplish the object for which the servant was employed. This matter was not mentioned in P. F. Collier & Son Distributing Corp. v. Drinkwater, 4 Cir., 81 F.2d 200, but the facts of that case imply it. And see: Gewanski v. Ellsworth, 166 Wis. 250, 164 N.W. 996. Stone’s return to his work was but a part of, or an incident of, his personal mission, so the fact that the collision occurred on his return to work is not material. Van Cleave v. Walker, Tex.Civ.App., 210 S.W. 767; Bres-nan v. Republic Supply Co., Tex.Civ.App., 63 S.W.2d 1105; Bishop v. Farm & Home Savings & Loan Ass’n, Tex.Civ.App., 75 S.W.2d 285. The very considerable distance between Stone’s home and his place of work is also not material in view of the testimony that employees provided their own transportation between home and work and that Stone’s employer provided him with living quarters at the rig. The usual rule will be applied. See: Antilley v. Jennings, Tex.Civ.App., 183 S.W.2d 982; Yorkshire Indemnity Co. v. Gonzales, 5 Cir., 210 F.2d 545.

The plaintiff’s argument stresses certain elements of the testimony, (a) Plaintiff says that Stone was subject to call throughout the 24 hours of the day, and would have obeyed an order had his employer given him one. However, there is no testimony that Stone was on duty in the sense that he expected to be called or that he was holding himself in readiness to respond to a call to perform some act for his employer. The testimony is to the contrary. As we have stated, the testimony is that Stone expected to begin work at a definite time and had nothing to do for the employer until then. In Thompson v. Twin City Lumber & Shingle Co., Tex.Civ.App., 220 S.W.2d 539, at page 541, the court gave no weight to the fact that the servant “would have stopped on the road home and talked about a proposal to sell timber to the company if some one should have hailed him down”. And see: McLamb v. Beasley, 218 N.C. 308, 11 S.E.2d 283, at page 285.

(b) Plaintiff says that Stone was required to and did use the automobile in his work and that he was taking the automobile back to the place where, or in connection with the work at which, it would be used. However, the automobile belong'ed to Stone and as we construe the testimony it was a part of his own equipment, not of the employer’s. Even if it had belonged to the employer or, by virtue of contract, had been equipment which the employer had the right to control and to use independently of Stone, the use which Stone was making of the vehicle would still, under the testimony, have been for Stone’s private convenience, to accomplish a personal object of his own. The case would be one of the employer loaning his vehicle to the servant, to accommodate and assist the servant. See: Thannisch Chevrolet Co. v. Kline, Tex.Civ.App., 134 S.W.2d 433, at page 435 (Headnote 4).

(c) Plaintiff says that the employer had control over the automobile at the time of the collision because said employer had contracted with Stone for the use of the vehicle. The testimony shows no such contract as plaintiff seems to contend for, but the comments just made apply to this argument.

(d) Plaintiff says that the employer instructed Stone to buy the tire and that the purchase of this tire, which provided equipment for a vehicle to be used in the employer’s work, was an object of the trip. This argument invokes the rule making the master liable where the servant acts with mixed motives. See: Galveston, H. & S. A. R. Co. v. Currie, 100 Tex. 136, at page 143, 96 S.W. 1073, 1074, 10 L.R.A.,N.S., 367. It may be added in support of this contention, that Stone was authorized to buy the tire when he could and that Norvell, president of the appellant corporation, said that Stone told him that he, Stone, had no spare tire. Stone’s conduct in having the new tire put on a wheel of his automobile could be accounted for by the lack of a spare, and if one of his tires had been destroyed a few days earlier, he probably would have had no spare. At any rate, Stone plainly had some need for the tire, and if he was to be able to- use his automobile for his employer when necessary, he had to have it equipped with safe tires. It is reasonable, then, and the jury were authorized to find, that Stone, who had gotten authority to buy the tire only a few days before he did buy it, kept his authority to buy in mind and purposed to exercise it, and, since Syphrett’s station was on his road, that he did have this purpose in mind when he left the rig to go home. He certainly had it in mind at some time on the trip because he carried it out by buying the tire.

However, Stone was not ordered to buy the tire as plaintiff argues. The testimony shows only that Norvell, president of the appellant corporation, authorized Stone to buy the tire, and that he gave Stone this authority because of the basic agreement that Stone would be reimbursed for expenses incurred in the employer’s service. Further, since the tire was bought as a reimbursement, to replace one destroyed in the employer’s service, and since the tire was to be put on Stone’s own automobile, which he used for his own purposes as well as for his employer’s, the tire would seem to have become Stone’s property, as we have stated in our summary of the evidence. So, what 'Stone actually did when he bought the tire was some work for himself. He was only maintaining his equipment in good condition when he bought the tire; and his intention to buy the tire was for his own use and benefit in the same sense as was his intention to get some clean clothing. Therefore, the rule concerning mixed motives is not applicable. The purchase of the tire at the time it actually occurred seems fortuitous, according to the evidence which we now have under consideration. ■ ,

The plaintiff makes no use of Stone's claim for compensation benefits, involving a declaration that he was on the employer’s business when he was hurt, except as impeachment of Stone (and thus, of the appellant’s case) and this was the purpose for which the evidence about this claim was admitted. This purpose would seem to be the only one on which such evidence would be competent.

So far we have been discussing the effect of the evidence which we have summarized above. Next to be considered is the effect of certain circumstances if some other parts of this evidence are disregarded.

Plaintiff argues that insofar as the evidence summarized proved any defense for the appellant employer, it was impeached, and that the jury were authorized to disregard any or all of it having such an effect and to believe only such parts of the evidence as they thought credible. With this argument we do not wholly agree. Thus as impeachment, the plaintiff says, in substance, that Stone and the employer attempted to suppress evidence, and plaintiff argues further, citing Broomfield v. Texas General Indem. Co., 5 Cir., 210 F.2d 746, as authority, that inferences of fact which support the finding under attack can be based upon this conduct. However, we find no attempt to suppress. On a pretrial deposition, Stone did not give the name of Evans as a witness, but Evans came upon the scene of the collision a little after the collision happened and he apparently did not see it occur. This would afford some reason for Stone’s statements on the deposition. And, Evans actually did testify and he was called by the appellant employer. As for the failure of Evans and Norvell to testify on the first two trials, to which plaintiff refers, the record does not show why, and both were called as witnesses by the employer and did testify at the trial under review. Then there are some items of evidence which are favorable to the appellant employer and which the jury had no right to disbelieve. One concerns the ownership of the automobile and another concerns the location of Stone’s home. The undisputed testimony is that Stone owned the automobile and that he resided at Fannett. Plaintiff seems to accept it as proved that Stone owned the automobile, and does not specifically contest the evidence about the location of Stone’s home; but had the testimony about these matters been untrue the evidence to dispute it should have been available. As regards his home, both Stone’s pretrial deposition and his testimony on trial shows that he lived (that is, still lived) at Fannett. However, we agree with the plaintiff in part. There are material conflicts in testimony between appellant 'employer’s witnesses, and Rollins is indirectly involved in one of these; and because of this and other reasons, including the matter of interest, we hold that the jury had a right to disbelieve the testimony of appellant’s witnesses which showed that Stone had gone home on a personal mission and not on a mission for the appellant employer’s benefit. Of course, the jury’s right to disbelieve appellant’s witnesses does not support the finding under attack, for the plaintiff had the burden of proof as to this finding.

When the appellant emp^er’s testimony is put aside, the evidence on which the finding under attack must depend is the following circumstances: — Stone is in an automobile, on a public highway, returning to the rig. This automobile he is obliged to use and does use in the employer’s business but it is his own property. (Otherwise the ownership is a matter of inference from circumstances). At Syphrett’s station, Stone buys the tire, charges the price to his employer’s account, has the tire put on a wheel of the vehicle, and drives away toward the rig. This purchase was made by way of reimbursement to Stone or else it is not explained and authority to make it is not proved. Stone had no spare tire at the time of the purchase. Fifteen miles short of his destination, his automobile collides with the truck driven by the plaintiff. The rig is running all the while, and Stone is a member of the crew operating it, and it is his duty to be available at the rig when called at any time during the 24 hours of the day, unless he is absent on a mission or has been relieved. Necessity that his services be available when desired is the basis of this duty of his, and that his services might be continuously available to the rig the employer provides him with living quarters at the site of the rig. However, it is Stone’s duty to fetch supplies or men when these are needed for the rig, and so he is sometimes away from the rig on a mission to procure these supplies or men. If Stone is away from the rig when it is running, it is because he is on a mission for the rig or else has been temporarily relieved from duty.

Plaintiff emphasizes some of these circumstances but wrongly. Thus, the purchase of the tire suggests a reimbursement but nothing in the circumstances listed suggests when a right to reimbursement accrued; this might as well have been before the trip on which the tire was bought as on that trip, and Stone’s lack of a spare tire proves nothing here. Nor do the circumstances suggest how the purpose to buy the tire affected the trip on which the tire was bought. Certainly .these circumstances do not. support an inference that the trip was made for the purpose of buying the tire. These circumstances do not show that Stone had come from the rig or, indeed, where he had come from-unless he had come from his home, and not unless it first be found that Stone was on a mission for his employer can a guess be made as to show how long he had been away from the rig.

Other criticisms can be made of these circumstances. Thus, Stone could have been on a personal mission; he could have come from his home, as we have suggested, for he was between his home and his place of work when he bought the tire.

Stone plainly was returning to work, but it seems to us that o-f the circumstances listed and of all the evidence only the following tend to show that he was also returning from a mission for his employer: The rig is running. When this occurs, Stone is a member of the crew at the rig unless he is on a mission or has been relieved; and when he is on a mission he is, or at least generally is, in his automobile. Yet he does some times leave the rig while it is running, when he has a mission to perform for the rig. Opposed to this is the possibility, suggested by the location of his home, that he could have gone home on a relief. Plaintiff only had to prove Stone’s agency by a preponderance of the evidence. Was it more probable that Stone was on a mission while the rig was running than that he was at home on a relief? It was, and there are some general statements of Stone which strengthen this probability. Thus he testified on pretrial deposition as follows: “Q. And you had been on that job constantly for how long a period of time? A. About three months, I guess; . something like that. Q. Had you been staying in that trailer house ? A. Not all the time I hadn’t. Whenever I would get a chance I would go home. Whenever they put the rig on stand-by time and the men didn’t have anything to do but clean up the rig, I •would go home.” The words italicized indicate that Stone had gone home only-when the rig was idle and thus imply (a' three months period of experience being, involved) that he would only have done so then. Stone did not say that he had ever been relieved; evidence of relief comes from Evans and Rollins.

Our conclusion, then, is that there is some evidence which tends to prove that Stone was on a mission for his 'employer at the time of the collision and which, therefore, required submission of the particular issue to the jury.

Point 1 is therefore overruled. Were it not for these circumstances we would have sustained Point 1. We turn now to Point 2.

Point 2 invokes' our jurisdiction to determine a question of fact, namely, whether the evidence is sufficient in fact to support the finding that Stone was operating his automobile in the course of his employment. We sustain Point 2. The evidence on which we have overruled' Point 1 is very scanty. In arriving at our conclusion we have disregarded all explanations of Stone’s mission and have deduced an explanation largely-in terms of probabilities. Our conclusion is a very general inference and it rests, at bottom, on Evans’ testimony that the rig was running. That the rig was running is the key fact, on which other elements of our conclusion depend, and the effect we have given that fact and the circumstances related to it looks somewhat like the effect given an administrative presumption. The rule of decision applicable to Point 2 is stated in Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, at page 88, 36 S.W. 247, 37 S.W. 319, and Id., 91 Tex. 406, 44 S.W. 69, and in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. If there had been no explanation of Stone’s mission we might have let the finding stand, but the circumstances on which the finding under attack must depend, in opposition to all evidence explaining Stone’s mission, are so few, and the inference made .therefrom is so general that we have decided that the finding attacked ought not, in justice, to stand. Plaintiff argues that evidence concerning the nature of an employee’s mission is peculiarly the property oí the employee and his employer. This may or may not he true in a particular cause, but whether it is true or not the circumstance that it is has no probative force.

In sustaining Point 2 we are, of course, only adjudicating the sufficiency of the' circumstances which, we have held, constituted the sole support for the particular' finding against the attack made by Point 1. If we erred regarding the support for the finding against the attack made by Point 1, we cannot undertake to say whether' Point 2 should be sustained or not. For the conclusion regarding Point 2 might then' be affected by some rule of law which we have not applied, or applied properly.

Appellant’s other Points of Error have been considered. Points 5 and 6 are overruled. Point 3 assigns error to the admission of. Stone’s testimony that he .had made claim for compensation for, and had collected, compensation benefits for his injuries from the collision. This testimony was admitted only for the impeachment of. Stone, who had testified that he was working for appellant at the time of the collision but was not on his job until he got to Gilchrist and wasn’t on duty at the time of the collision. This summary is in words used -by Stone. And, stating Stone’s answer in the words of.the question asked him, the testimony which Point 3 assigns error to is, that Stone “did collect compensation insurance, claiming that he was an employee on duty.” Stone was the appellant's witness and not merely a witness in his own behalf, and the plaintiff had the right, as against the appellant, to impeach him by proving prior inconsistent statements by him regarding his mission or concerning what he was doing on the trip in suit. Woodward-Wanger Co. v. Nelson, Tex.Civ.App., 11 S.W.2d 371. In McCoy v. Beach-Wittman Co., Tex.Civ.App., 22 S.W.2d 714, the Court of Civil Appeals said that an alleged employee’s claim for compensation was admissible to impeach that person’s testimony, in a suit against him and his employer like that before us, if this evidence really did impeach the witness. On the other hand it is held that opinions or conclusions of a general sort are not admissible as impeachment to contradict statements made in testimony by the witness. McCormick & Ray’s “Texas Law of Evidence”, Sec. 346, p. 435. Stone’s testimony that he made a claim for compensation benefits and collected such benefits is, considered alone, such an opinion or conclusion as would be inadmissible under the latter rule. However, his testimony that he had claimed to be an employee of appellant on duty at the time of, the collision would show a declaration specific enough to be admissible within the holding made in Woodward-Wanger Co. v. Nelson — if what this testimony shows really was said by Stone and is not a conclusion drawn from some other statement of Stone’s. The impeaching agent, is Stone’s own declaration. If plaintiff has proved a declaration by Stone, then plaintiff had a right to segregate and identify this statement by showing where and when it was made, for otherwise he would not have been able to contradict Stone. However, testimony that Stone’s claim had been successful, resulting in the payment of compensation benefits to him, was not necessary to Stone’s impeach&enti’ánd on proper objection should'have been excluded. The tendency of such evidence is to show that Stone really was in the course of his employment at the time of the collision. Point 4 assigns error to the exclusion of evidence offered to explain away the effect of the testimony about Ston'e’s claim for compensation. The evidence referred to in this, point explains nothing except the actual collection of compensation benefits by Stone and could not be proper if that fact is not in evidence.

The judgment of the trial court is reversed and the cause is remanded to said court.