Worsham-Buick Co. v. Isaacs

On Further Rehearing. The motions for rehearing, now under discussion, were disposed of by the court before Judge VAUGHAN, late Associate Justice (who had charge of the record), retired from the bench, and the task of stating, for the court, reasons why the motions were overruled was given the writer. A short resume of the case at this juncture is deemed appropriate.

The action is one for damages by Mrs. Isaacs for herself and on behalf of her son, Alfred (a minor at the time of his father's death), and her married daughter, Mrs. Tribble, for injuries resulting in the death of R. W. Isaacs, husband and father of appellees, caused by the alleged negligence of appellant. Mr. Isaacs died as the result of injuries received when the automobile in which he was riding, was struck and demolished by an automobile belonging to appellant, driven by one Al Simpson, appellant's service superintendent. The evidence is to the effect that Charles K. Cohn, appellant's sales manager, having control of its new cars in stock, permitted Simpson to take one out on a Sunday for personal use, who while intoxicated operated the car recklessly and negligently, colliding with the car in which Isaacs was seated, inflicting upon him injuries from which he died. The grounds of negligence alleged are, in substance: (a) That Simpson was at the time appellant's agent, acting within the scope of his employment, therefore liability was established under the doctrine of respondeat superior (this ground was not sustained by evidence, hence will not be considered further); (b) that as a question of law, appellant was chargeable with Simpson's negligence, because permitted to use and operate the automobile in violation of article 6686, R.S. 1925, as amended, in that, being under a dealer's license and number plate issued to appellant, was not operated for demonstration purposes (this ground was sustained by evidence, but the answer of the Supreme Court to certified questions removed it as a ground of recovery, as shown hereafter); (c) also, that appellant was guilty of actionable negligence, in that Simpson, an unfit, incompetent, reckless driver, addicted to the habitual use of intoxicating liquors, was permitted by appellant's vice principals, with knowledge or notice of Simpson's unfitness, incompetency, recklessness, and dissipation, to use and operate the car upon the crowded highways of the city of Dallas.

The issues last mentioned, while not established by uncontroverted evidence, were sufficiently supported to raise jury questions, to the effect that, with knowledge or notice of the facts above mentioned, Cohn, acting within the scope of his authority, was guilty of actionable negligence, binding upon appellant, in permitting Simpson to use and operate the automobile at the time and under the circumstances; that Worsham, president and general manager, was guilty of actionable negligence, binding upon appellant, in failing, after knowledge of the facts above mentioned, to take the necessary steps to prevent Simpson from obtaining the automobile for personal use upon public highways.

At the conclusion of the evidence, the court took the question of liability from the jury on the idea that, under the pleadings and uncontroverted facts, plaintiffs were entitled to recover their damages, to be determined by the jury, and only submitted that one question, that is, the assessment of damages, and on their findings, rendered judgment against appellant, from which the appeal was prosecuted.

On original submission, for the reasons stated by Judge VAUGHAN in the opinion delivered October 22, 1932, we certified to the Supreme Court, for its adjudication, the question, which at that time was thought to be decisive of the controversy, that is, the question whether or not Simpson's use and operation of the automobile upon the highways of the city of Dallas in violation of article 6686, R.S. 1925, as amended, by permission of appellant, would fix its liability as a matter of law. Answering the question, the Supreme Court announced the law to be that, under the facts, no liability existed (see report of case on certificate,51 S.W.2d 277); therefore, in harmony with the law as announced by the Supreme Court, we reversed the judgment of the trial court and rendered judgment for appellant (see opinion by Judge VAUGHAN, delivered September 10, 1932). Later, this judgment was set aside, on motion for rehearing by appellees, and after further consideration, for reasons stated in the opinion by Judge VAUGHAN, delivered October 22, 1932, the case was reversed and remanded for further proceedings.

This brings us to the motions for rehearing, under consideration. Appellees contend that, instead of remanding the cause, the court erred in not affirming the judgment in their favor, because: (a) Appellant having urged only one ground for reversal, that is, that the court erred in not instructing a verdict in its favor, and as this contention was denied, this court should have affirmed the judgment. Appellees are in error, appellant also assigned error and properly briefed the contention that the court erred in its charge on the measure of damages, in that, the jury was not instructed that, in making the assessment, nothing could be allowed plaintiffs for grief, mental anguish, or loss of society.

The court's charge reads: "What sum of money do you find and believe, from the preponderance of the evidence, if paid now in cash, would reasonably compensate the plaintiff, Mrs. Mettie K. Isaacs, for the present value of the pecuniary aid, if any, she would have received from the said R. W. Isaacs had he not been killed, and for the reasonable and necessary doctors and medical bills, if any." A similar submission, in so far as applicable, was made as to Alfred Isaacs, the son of deceased. Appellant urged exceptions to this charge, on the ground that the jury was not told that in assessing damages they could not consider the elements of grief, mental pain and anguish, or loss of society. Error was also assigned and the matter is properly before us for consideration.

At a former day, we overruled appellant's contention in this respect (see opinion by Judge VAUGHAN filed October 22, 1932), but on reconsideration, have concluded that such holding was error. In Gulf, C. S. F. R. Co. v. Conley, 113 Tex. 472, 475, 260 S.W. 561, 32 A.L.R. 1183, the Supreme Court held that articles 1971 and 1985 (now 2185 and 2190) were designed to accomplish the same purpose, and should be construed together, to the effect that the failure to submit a particular issue can be reviewed only when a special charge thereon is tendered and refused, but that such is not the case with reference to a defective, erroneous, or incomplete statement of the law or issue; that in the latter instances, the objection mentioned in the statute (now article 2185) takes the place of and is tantamount to the tender of a special issue and renders such offending charge open to review.

After the charge was objected to, we think the court erred in giving same without correction. Charges, couched in general language such as was employed by the court in the instant case, were held erroneous (presenting reversible error) in International G. N. R. Co. v. McVey, 99 Tex. 28, 87 S.W. 328; Gulf, C. S. F. R. Co. v. Farmer,102 Tex. 235, 115 S.W. 260; Hines v. Kelley (Tex.Com.App.) 252 S.W. 1033.

Because of the error just considered, the case will have to be reversed and remanded, unless appellant shows reasons why judgment should be rendered in its favor, and basis for such relief must be found to exist, if at all, in its assignments of error. Appellant reduces its assignments (forty-two in number) to two propositions: One, that the court erred in submitting the measure of damages. This matter we have just considered. The other is that the court erred in not instructing a verdict in its favor because the evidence showed that, at the time of the accident, the automobile was being driven by Al Simpson while off duty and solely for his own pleasure. If this statement comprehends all the evidence on the question of liability, the position of appellant would be well taken, but such, in our opinion, is not the case. On the question of appellant's negligence whether or not (through its vice principals, Worsham and Cohn) in not preventing, or by permitting, Simpson to use the car for the purpose and under the circumstances mentioned, the evidence, although conflicting, was, in our opinion, sufficient to raise jury issues.

Several of Simpson's fellow employees testified that he drank intoxicating liquors on certain occasions, two gave testimony to the effect, that he kept liquor in a locker at his place of work, drank there and would get under its influence. One of these, Mr. Prather, testified that, prior to the accident, he told Mr. Worsham, general manager, that Simpson had taken out a customer's car and while drunk wrecked it, and warned Worsham that, if he did not discharge Simpson, or prevent him from using cars, he would kill some one; that to this warning Worsham replied that he knew Simpson drank liquor, but he could not be discharged because he was a valuable man and made money for the company.

There is no direct evidence that Cohn knew of Simpson's habits of dissipation, nor that Worsham was apprised of these facts other than as stated above; yet, they associated with Simpson at appellant's place of business, and neither Cohn nor Worsham, while on the stand, disavowed such knowledge; Cohn simply said that, when he consented to the use of the car, he did not smell liquor, or notice anything about Simpson indicating that he was drinking; Worsham's testimony on the issue was confined alone to a denial of the facts testified to by the witness Prather, above stated. These facts and circumstances, in our opinion, would warrant jury findings that both Cohn and Worsham knew of Simpson's habits of dissipation; at all events, we think these jury questions were raised, that is, whether or not Worsham, under the circumstances, negligently failed to take necessary steps to prevent Simpson from obtaining appellant's car for personal use upon the public highways; also whether or not Cohn, under the circumstances, was negligent in permitting Simpson to take out and use the car on the occasion. If either Worsham in not preventing, or Cohn in permitting, Simpson to obtain and use the car, was guilty of actionable negligence, appellant would, in our opinion, be liable. Neither the question of agency, nor whether at the time Simpson was acting within the scope of his employment, is involved, but the question is: Did appellant owe any duty to individuals who might be upon or traveling over highways, to exercise reasonable care to see to it that those to whom it intrusted its cars for use upon the public highways, are competent sober drivers? We think appellant did owe such duty, and if, through its failure to discharge same, Simpson was permitted to obtain its car, and becoming drunk, by reckless, abandoned driving collided with the car in which Isaacs was riding, killing him, appellant would be liable. As these issues were supported by evidence, the court did not err in refusing to direct a verdict for appellant.

The facts of the case, we think, bring it within the doctrine announced in the well-considered case of Waldo v. Galveston, etc., Ry. Co., 50 S.W.2d 274, with full citation of authorities, by Judge Leddy for the Commission of Appeals, the holdings of the latter, on the questions discussed, were expressly approved by the Supreme Court.

In harmony with these views, the motions for rehearing are overruled.

Overruled.