119 S.W.2d 106 | Tex. App. | 1938
Irene Lewis, a minor, through H. L. Lewis her father, as next friend, sued the J. P. Word Transfer Company, a corporation, and William Walkenshaw, to recover damages for personal injuries received in a collision, between an automobile in which she and other members of her family were riding and a truck being driven by William Walkenshaw, occurring December 23, 1933, in the City of Dallas. Plaintiff alleged, in substance, that the collision was the result of the negligent operation of the truck by Walkenshaw, who at the time was operating same *107 for and at the instance of the Transfer Company.
Both defendants answered, but Walkenshaw failed to appear at the trial. At the conclusion of the evidence, the court instructed a verdict for the Transfer Company, but submitted the cause to a jury as to Walkenshaw, against whom a verdict for $1500 damages was found in favor of plaintiff. Plaintiff appealed from the judgment that she take nothing as against the Transfer Company.
The only question for our decision is: Did the court err in directing the verdict for the Transfer Company, based upon the idea that the evidence failed to raise an issue as to whether or not Walkenshaw was its employee and acting within the scope of his employment at the time of the accident?
Plaintiff called as her first witness J. P. Word, president and general manager of defendant Transfer Company, who testified, in substance that: Prior to the date of the accident (December 23, 1933) Mr. Walkenshaw, a mechanic, asked defendant for work, and having several trucks needing repair, Walkenshaw was employed to work them over; later, he expressed a desire to buy one of the trucks, and that (about November 1, 1933) defendant sold him a Stewart truck that had been out of service for some time, and he (Walkenshaw) "worked it up"; the truck was not rented to Walkenshaw but was sold to be paid for in monthly installments; no bill of sale was given evidencing the sale, but it was understood that when Walkenshaw paid $100, a bill of sale would be executed. After the sale the truck was not kept at defendant's place of business. In the latter part of November or first of December, Walkenshaw went to work; witness did not know for whom, but he cashed several of Walkenshaw's checks from the Government (U.S.); that having lost his job, Walkenshaw failed to pay for the truck, and early in 1934 (uncertain as to the date) surrendered same. Defendant gave Walkenshaw no orders or instructions, did not control or attempt to control his actions, he was free to do whatever he wanted to do (with the truck); that defendant did not at any time employ him as a driver (of trucks). This uncontradicted testimony conclusively disproved plaintiff's cause of action, as alleged.
Plaintiff insists however that, as the truck had the name of the Transfer Company lettered on its sides, and was at the time registered in the Highway Department of the Tax Collector's office of Dallas County in the name of the Transfer Company, the presumption should be indulged that the Company was the owner of the truck, and that it was being operated in its interest, therefore the issue as to its ownership by and operation for the Transfer Company should have been submitted to the jury.
If, in the absence of an explanation, these facts justified the presumption that, the truck belonged to the Transfer Company, and further, that it was being operated in its interest (a presumption based upon a presumption), such presumptions were forbidden in view of the positive uncontradicted testimony of Mr. Word (introduced by plaintiff), to the effect that the truck was owned by Walkenshaw under the executory contract of sale, and was being operated by him in pursuit of his own personal affairs. Hudson v. Ernest Allen Motor Co., Tex. Civ. App.
It is further insisted that the issue as to the ownership and operation of the truck, was raised by Walkenshaw's statements made in response to questions asked at the scene of the accident and soon after its occurrence, to the effect that he was working for the Transfer Company, and that the truck belonged to it. The record discloses that, testimony to the effect just mentioned, was admitted over objection by the Transfer Company, that it was hearsay and formed no part of the res gestae. The ownership of the truck and for whom operated, in our opinion, were facts disassociated from the transaction under investigation — that is, the collision of the vehicles — nor did they tend in the least to explain or illustrate how or why the collision occurred; hence being no part of the res gestae, but mere hearsay, should have been excluded. In Stokes Bros. v. Thornton, Tex. Civ. App.
Although admitted over the objection of the Transfer Company, the evidence was without probative value, hence was not sufficient to either raise an issue or sustain a finding. In Shelton v. Thomas,
We do not think the court erred in directing the verdict and in rendering judgment in favor of the Transfer Company, therefore the judgment is affirmed.
Affirmed.