161 F.2d 5 | 5th Cir. | 1947
C. C. Chenoweth, an employee of appellee, while under the influence of intoxicating liquor, drove appellee’s truck over a seven-inch curb and thirty feet of sidewalk, through the wall of a hotel, and struck Minnie Lee Murray, wife of appellant, who was at the time in the building. In accord with Texas community property law, appellant filed this suit for damages for the injuries sustained by his wife. Appellant based his wife’s claim against appellee upon three theories of negligence: (1) That Chenoweth’s negligence was appellee’s negligence, as he was on business for appellee at the time. (2) That the ap-pellee was negligent in entrusting its truck to Chenoweth whom appellee knew or should have known to be a habitual drunkard. (3) That appellee was negligent in permitting- the accelerator of the truck to become and remain defective. The trial judge, at the close of plaintiff’s case, directed a verdict on the ground that the evidence was insufficient to sustain any one of the three theories of negligence. Appealing here, appellant insists that in -so ruling the court erred. Our examination of the testimony convinces us that sufficient evidence existed for submission to the jury of the question of defendant’s liability on the theory of the entrustment of a dangerous instrumentality to an incompetent. Oili the other grounds for the motion, we need not rule.
Chenoweth testified that he was a foreman gauger in the employ of the appellee and that his duties were that he should be “available for' emergencies” twenty-four hours a day. During the preceding' yeat he was furnished a company truck and often it was used by him for his “personal business”. On the day in question he had driven from appellee’s camp to the Post Office to get his personal mail and then to a liquor store so that he and a friend could purchase liquor for their personal use. On the return trip from the liquor store to the camp, the collision occurred. While he admitted he was under the influence of intoxicating liquor, he ascribed the cause of the collision to a defective accelerator.
L. E. Ing, who worked under Chenoweth, testified that Chenoweth’s drinking was “a regular occasion”; that on one occasion at appellee’s “station” Chenoweth was “drunk, crazy drunk”; and that when Ing told Norris, Chenoweth’s superior, Chenoweth denied the charge 'of drunkenness, but Norris told Chenoweth, “Charley, I know your condition, you was too drunk.” Ing also told Paret, Norris’s superior, that he “did not care to stay to work under a man that stayed drunk all the time.”
The Texas Court of Civil Appeals sets out the liability of the owner of a car for the damages resulting from the negligence of an incompetent driver to whom the own
The Supreme Court of Texas
The Texas Court of Civil Appeals has approved the extension of this liability to a situation where the owner might reasonably have anticipated the incompetent driving.
While the record, discloses no evidence that the appellee knew that Chenoweth had previously driven while intoxicated, we think that appellee’s liability could be predicated upon appellee’s reasonable anticipation of Chenoweth’s driving while drunk, for the test is not necessarily what appellee actually knew as to whether or not Chenoweth drove while drunk, but the test is what the appellee, in the exercise of reasonable care, should have known. The danger inherent in entrusting a motor vehicle to a drunken driver has been expressed by the Court of Appeals of Kentucky
In Worsham-Buick Co. v. Isaacs et al., the Texas law applicable here is thus summarized:
For the reasons assigned, tile judgment appealed from is reversed, and the cause is
Reversed and remanded.
Lang Floral & Nursery Co. v. Sheridan, Tex.Civ.App., 1922, 245 S.W. 467, 471, error dismissed.
Russell Const. Co. v. Ponder et ux., 1945, 143 Tex. 412, 186 S.W.2d 233, 235.
Allen v. Bland, Tex.Civ.App., 1914, 168 S.W. 35, 37, 38, error refused.
Brady et ux. v. B. & B. Ice Co. et all., 1931, 242 Ky. 138, 45 S.W.2d 1051, 1053.
Tex.Civ.App., 56 S.W.2d 288, 295, reversed on other grounds in Worsham-Buick Co. v. Isaacs et al., 1935, 126 Tex. 546, 87 S.W.2d 252.