101 S.W.2d 379 | Tex. App. | 1937
Sims Hooper brought this suit against G. H. Sturdevant, J. T. Carroll, Rentz Gullick, and George Colbath to recover damages for personal injuries sustained by him as a result of an automobile collision on a public highway. The plaintiff alleged that the defendants, Sturdevant, Carroll, and Gullick, were partners engaged in the purchase of fruits and vegetables in the Rio Grande Valley and the transportation to and sale thereof in Dallas and other' North Texas towns, and that Colbath,^ their servant, while driving an automobile truck for said firm, collided with plaintiff and injured him. The jury, in answer to special issues, found that a partnership relation existed among defendants, Sturdevant, Carroll and Gullick, in the handling of fruits and vegetables at the time in question; that the automobile truck which caused the damage was being used at the time to haul fruits and vegetables for said firm; and that the defendants and their servant were guilty of certain acts of negligence which proximately caused plaintiff’s damages. The trial court rendered judgment for the plaintiff against the defendants, jointly and severally, for the sum of $5,650, in accordance with the findings of the jury. The defendants sued out a writ of error to this court.
The plaintiffs in error contend that the evidence was insufficient to authorize the court to submit to the jury the issue as to a partnership relation among Sturde-vant, Carroll, and Gullick. All of the evidence on the issue of partnership came from the three alleged partners and is without dispute. This evidence shows that said three partners were engaged in the business of buying fruits and vegeta
Plaintiffs in error ‘contend that it was error for .the trial court to render judgment against Carroll and Gullick in the absence of a finding by the jury that Colbath, the driver of the truck, was their employee. The evidence was undisputed that Sturdevant, one of the partners, was authorized to employ an assistant to help drive the truck but that he was required to pay such employee out of his own share of the profits. He had, with the knowledge and consent of the other members of the firm, employed such helpers on other occasions. It is undisputed that Sturde-vant employed Colbath to drive the truck on the occasion in question and that Stur-devant was on the truck with Colbath at the time of the collision. It appears that the truck was being run day and night and that Sturdevant and Colbath were taking turn about, one driving while the other slept. They were hauling a load of produce for the firm at the time. Under these circumstances, the firm, and each member thereof, was liable for Colbath’s negligence. Since the facts establishing Col-bath’s agency were undisputed, there was no necessity of submitting the issue to the jury. 41 Tex.Jur. 1027, 1079.
The only other ruling necessary to be considered is the assignment that the court erred in excluding certain evidence. It was material to show the relative position of plaintiff’s automobile and the truck at the time of the collision. Morrell, a witness for the defendants, testified that he examined the premises at the scene of the accident shortly after the accident occurred and that the marks made by plaintiff’s automobile were on plaintiff’s left-hand side of the road. On cross-examination, said witness admitted discussing the matter with Mr. Houtchens, counsel for plaintiff, at the scene of the accident a few days after the accident had occurred, but denied having told said counsel that the marks of the plaintiff’s automobile showed that he was on his right side of the road. Said counsel for plaintiff then took the witness stand as a witness for plaintiff and testified that Morrell had pointed out to him the place where plaintiff’s automobile had marked the road, and that said marks were on plaintiff’s right side of the road. Counsel for defendant then asked the witness, counsel for plaintiff, if he was not in
The judgment of the trial court is affirmed.