145 S.W.2d 675 | Tex. App. | 1940
This is an action for damages for personal injuries. There was evidence that W. IT. Radebaugh, a traveling salesman, while in R. E. Cox Dry Goods Company store in Waco soliciting an order for products manufactured by Harriet Hubbard Ayer, Inc., set his sample cases in the aisle and that Mrs. Kellog stumbled over-one of them and was severely injured. Mrs. Kellog sued Radebaugh and his alleged employer, Harriet Hubbard Ayer, Inc., hereinafter referred to as “Ayer,” and R. E. Cox Dry Goods Company, hereinafter referred to as “Cox,” for damages. Cox asked for judgment over and against Rade-baugh and Ayer for any amount which it should be required to pay and Ayer likewise prayed for judgment over against Cox. Radebaugh filed a plea of privilege to be sued in Dallas county, the county of his residence. The plea of privilege was tried along with the main case and at the conclusion of the evidence, the plea was sustained and the suit as to Radebaugh was transferred to Dallas county. As to the other defendants, the case was submitted to the jury under special issues, and, in response thereto, the jury found, in substance, that one Joe Brown was an agent of Ayer for the sale of its products in Texas; that the nature of his agency was such as to make the employment of sub-agents necessary; that Radebaugh was Brown’s sub-agent; and Ayer knew that he had been
Cox’s .first major contention is that the evidence was insufficient to show any negligence on its part, and, for that reason, the court should have instructed a verdict for it. It should be noted at the outset that Radebaugh was not an agent or employee of Cox and that if Cox is to be held liable at all, it is' not because of Radebaugh’s negligente in putting the cases in the aisle but because of Cox’s failure to discover and remove them prior to the injury. The court submitted to the jury an issue as to whether, prior to the accident, Cox had notice of the cases in the aisle. The jury answered the issue in the negative. In connection with said issue, the court instructed the jury that by the term “notice” was meant “knowledge of such fact or facts as would put an ordinarily prudent person on inquiry, which inquiry, if followed with reasonable diligence, would lead to the discovery of the main fact, that is, the fact in question.” . We must presume therefore that Cox not only had no actual knowledge of the existence of the cases in the aisle but that said defendant did not have actual knowledge of any fact which would have put a reasonably prudent person on inquiry, but even though Cox had no such knowledge or notice, said defendant would be liable if the dangerous situation had existed long enough that a 'reasonably prudent person, in the exercise of ordinary care in looking after a store such as is here under consideration, would have discovered and removed the dangerous situation, for while a storekeeper is not an insurer of the safety of his customers while in his store, he is obligated to exercise ordinary care to keep the premises in a reasonably safe condition for their protection. 30 Tex. Jur. 871; 45 C.J. 837; Graham v. F. W. Woolworth Co., Tex.Civ.App., 277 S.W. 223; Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302, 306; Bustillos v. Southwestern Portland Cement Company, Tex.Com.App., 211 S.W. 929. The mere finding that Cox had no knowledge of any- fact which, if reasonably pursued, would have led to a discovery of the defective condition does not acquit said defendant of negligence in failing to exercise ordinary care ' to discover such facts. A storekeeper must exercise some care to see that his store is kept in a reasonably safe condition for his customers, even though he has no actual knowledge of any fact that would lead him to believe that a dangerous situation existed. Consequently, we must determine whether there was sufficient evidence to show that the sample cases had been in the aisle in such position as to create a dangerous situation long enough that, by the exercise of ordinary care, Cox should have discovered and removed same prior to the accident. The evidence shows that the aisle where the acci
Ayer contends that there was no such contractual relation existing between it and Radebaugh as to make it responsible for his negligence. The evidence shows, without dispute, that Radebaugh was working as an agent of one Joe Brown at the time of the accident in question. Brown testified that for many years prior to 1934, he was engaged in selling Ayer products on a commission basis; that he had the exclusive agency in Texas and several other southern states; that he sold the goods exclusively on a commission basis; that he was in nowise under the control or direction of Ayer as to how he carried on the business, except as to the terms of sale and prices to be received for the goods; and that otherwise it was left entirely to his discretion as to how he would carry on the business. In 1934, Brown became the vice-president and general sales manager of Ayer, but at that time, as an inducement to him to accept the management of the company, it-was specifically'agreed that he would be allowed to retain his southern territory, including the state of Texas, with the right to the exclusive agency for the sale of such products on a commission basis in said territory on the same terms and conditions as had previously existed; that said contractual relation continued up to and including the month of October, 1936, when
We think this evidence was wholly insufficient to show such contractual relation between Radebaugh and Ayer as to make Ayer liable for his negligence. If Ayer is liable at all, it must be because of the doctrine of respondeat superior, growing out of the relation of master and servant. It appears without dispute that Radebaugh was not employed by Ayer but by Brown. We must therefore ascertain whether Brown was a servant of Ayer or an independent contractor. Restatement of the Law of Agency, ch. 1, par. 2, thus defines “master,” “servant,” and “independent contractor”: “(1) A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. (2) A servant -is a person employed by a master to perform service in his affairs whose physical conduct in the performance of'the service is controlled or is subject to the right to control by the master. (3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control'with respect to his physical conduct in the performance of the undertaking.” The above definitions are substantially in accord with those adopted and applied by the courts of this state. See Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640, 642, and authorities therein cited.
Under the rules above announced and the facts shown by this record, Brown was clearly an independent contractor and not a servant within the meaning of the law that makes the master liable for the negligence of the servant. Ayer did not exercise any control over the physical conduct of Brown or his employees in performance of the contract. The fact- that Ayer’s contract with Brown was terminable at will and that Ayer would have terminated it if Brown had not produced satisfactory results, and the further fact that Ayer fixed the prices and terms upon which the goods were to be sold, does not evidence such control over Brown as to Tender him a servant of Ayer. Such evidence merely shows that the employer was exercising control to see that the work was being performed and results accomplished according to the terms of the contract. As we understand, an employer has a right to exercise such control over an independent contractor as is necessary to secure, performance of the contract according to its terms and to accomplish the results contemplated thereby without thereby creating the relationship of master and servant, so .long as the employer does not destroy the employee’s power of initiation nor undertake to control the employee in'the means and manner of the performance of the work. See Carter Publications v. Davis, Tex.Civ.App., 68 S.W.2d 640, pars. 2, 3; 14 R.C.L. 68; 23 Tex.Jur. 547; Lone Star Gas Co. v. Kelly, Tex.Com.App., 46 S.W.2d 656; Davis v. General Acc. Fire & Life Assur. Corp., Tex.Civ.App., 127 S.W.2d 526, par. 6; Lehr, Inc., v. Brown, 127 Tex. 236, 91 S.W.2d 693, par. 1.
It is true that at the time of the accident, Brown was the vice-president and sales manager of Ayer and that Radebaugh was employed by Brown and was under his
Cox’s contention that Ayer, by its course of dealings, is estopped to deny that Radebaugh was its agent and representative cannot be sustained, because a person seeking to avail himself of the benefit of the doctrine of agency by estoppel must show that he has been induced to act to his prejudice on the implied representations of agency. 2 Tex.Jur. 424. No such showing was made in this case. We sustain the appellant Ayer’s contention that the evidence is insufficient to show liability on its part.
Mrs. Kellog makes no complaint of the ruling-of the court in sustaining the defendant Radebaugh’s plea of privilege as to her suit, but Cox does complain of the sustaining of such plea as to the defendant Cox’s cross-action. Cox sought judgment over against both Radebaugh an£ Ayer. The venue of such cross-action cannot be maintained in McLennan county under section 4 of Revised Statutes, art. 1995, Vernon’s Ann.Civ.St. art. 1995, because neither of the defendants as to such cross-action resides in McLennan county. Cox asserts, however, that since it had the right to maintain its suit against Ayer, a foreign corporation, in McLennan county, it had a right to hold Radebaugh in the same suit as a necessary party defendant under section 29a of the same article. It has been held that when it is sought to maintain a suit against two or more defendants in the county of the residence of one of them under section 4, the plaintiff must prove a valid cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Caprito v. Weaver, Tex.Civ.App., 77 S.W.2d 595; Lipscomb v. Rankin, Tex.Civ.App., 139 S.W.2d 367. It would seem that the same rule should prevail in suits brought under section 29a — that is, that plaintiff should be required to prove a valid cause of action against the other defendant rightfully sued in the county where the suit was filed. As hereinbefore held, plaintiff failed to establish a valid case against Ayer and hence did not have the right to hold Rade-baugh in the same suit on the ground that he was a necessary party. Radebaugh did not commit a trespass in McLennan county within the meaning of section 9 of Article 1995, and hence the venue could not be maintained in said county under said section. No reversible error is presented because of the sustaining of the plea of privilege.
It appears that the suits of the plaintiff against Harriet Hubbard Ayer, Inc., and the cross-action of R. E. Cox Dry Goods Company against the same defendant have been fully developed and that the evidence is insufficient to show any liability on the part of Harriet Hubbard Ayer, Inc. Consequently, the judgment in favor of the plaintiff against Harriet Hubbard Ayer, Inc., is set aside and judgment is here rendered that plaintiff take nothing against said defendant. Likewise, the judgment of R. E. Cox Dry Goods Company against the same defendant is reversed and judgment here rendered that said R. E. Cox Dry Goods Company take nothing as against said defendant on its cross-action. The judgment of the trial court is in all other respects affirmed.