Suit by appellee against appellant for damages to his car and for personal injuries to his wife, resulting from a collision on September 22, 1931, on the streets of Cameron with a car driven by an employee of appellant. The car driven by the employee, Joe Deaton, was his own property. Trial was to a jury on special issues, and judgment rendered in favor of appellee for $6,683.35; hence this appeal.
Appellant’s defense was, among other things, that said employee was using his own car for his own convenience and comfort; that it was not necessary in the performance of his duties; that it was being used by him without authority of his employer, either express or implied, but contrary to the instructions of his employer; that in so using it he was not acting within the scope of his employment at the time of the collision; and that therefore appellant is not liable. No complaint is made as to the findings of negligence of said employee nor of the amount of the damages assessed. The controlling issue presented relates to the defenses urged.
There is little controversy over the facts. They were substantially as follows: Deaton was sent by the Dallas office to the Cameron office of appellant some ten days before the collision as local salesman of electrical accessories, such as washing machines, radios, electric irons, etc. He was under complete control of appellant’s manager at Cameron. His duties were to solicit orders for, demonstrate, and effect sales of, electrical equipment. The usual and customary method of discharging his duties was for him to go about on foot; and, when equipment was to be taken from appellant’s place of business,' it was customarily delivered by another employee, either alone or aided by Deaton, on a small truck furnished by appellant for that purpose. There was evidence, however, that on some occasions Deaton had delivered or taken up equipment, placed in residences for demonstration, in his own car. A few days after beginning his employment, Deaton purchased individually the car in question. Appellant paid no part of the expense of operating it, and exercised no control over it. A few days before the collision, the manager of appellant saw Deaton driving it, and suggested to him that he would effect more sales by not using his car in his work, and in effect requested him not to so use it. The manager testified that in dealing with his employees such a request amounted to, was intended ás, and understood by them to be, an
On the occasion in question, appellant had delivered on its truck an electric washing machine at a private residence in Cameron, about 1½ miles from appellant’s place of business. Deaton went out in his own car to demonstrate it. He returned to the downtown office in his car to procure a connecting cord and then to the residence, where he demonstrated the machine, effected a sale thereof, procured the purchaser’s check, and was on his way back to appellant’s office when the collision occurred. Appellant’s manager testified that he did not know that Deaton was using his own car at the time.
Except in the use of his own car, there is no question but that Deaton was, at the time of the collision, engaged in the course of his employment and subject to the complete control, direction, and authority of his master. Though there was sufficient evidence from which the jury might have inferred that Deaton was, at the time of the collision, using his- own car with the implied assent of his employer, that issue was not submitted to the jury. But there was no evidence that he was doing so with any express authority from the master. The evidence in that respect was to the contrary.
It is needless for us to discuss the liability generally of the master for the torts of his servant committed while acting within the scope of his employment. The real issue here presented is whether the master is- liable for such torts where the servant, in performing the duties for which he was employed, uses means not authorized by the master, but which he was instructed by the master not to use. The general rule laid down by the United States Supreme Court as early as 1852, as to the master’s liability for the torts of the servant, is: “If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.” Philadelphia & R. R. Co. v. Derby,
This rule appears to have been uniformly followed throughout this country. See 39 C. J. 1285, and numerous cases there cited. In applying it in this state, Judge Gaines in I. & G. N. Ry. Co. v. Anderson,
Nor has such rule been confined to the acts of the servant performed upon the premises of the master. Burnett v. Oechsner,
When applied to the acts of the servant in using his own automobile in the discharge of the duties of the master, many of the courts which subscribe to the foregoing general rule have varied it to the extent that, unless it be shown that the use by the servant of his own car was expressly or impliedly authorized by the master, the master cannot be held liable for forts of the servant when so committed. The great weight of authority in other jurisdictions is dearly to that effect. 42 C. J. 1129; Labatt’s Master & Servant (6th Ed.) vol. 6, p. 6888; Huddy, Cyc. of Automobile Law (9th Ed. 1931), vol. 7-8, p. 348; Kennedy v. Union Charcoal & Chem. Co.,
The test of liability of the master is, not whether the master was at the time of the act complained of in fact exercising control and direction over the conduct of the servant, but whether he had the right and authority to do so. The evidence clearly shows in the instant case that the master had complete control over the manner in which Deaton performed his duties and authority to exercise that control both as to the time and the manner in which he was perform
But whether or not the use of his own car in the premises brings him within the modification of the general rule of the scope of his employment as is apparently made by the authorities in other states above cited, we think the Texas courts have so applied the rule announced to servants operating their own automobiles in the service of the master as to clearly control the issue here presented. In Buick Automobile Co. v. Weaver (Tex. Civ. App.)
•While both the appellant’s manager and Deaton testified that the use by Deaton of his automobile was not necessary in the performance of his duties, the facts are that in the instant case the customer lived about a mile and a half from appellant’s place of business; and the employee made two round-trips between these places in the discharge of his duties on the morning in question, necessitating travel of at least six miles. Clearly under these circumstances the employee used means of travel beneficial to the master. While the use of means beneficial to the master is not a conclusive test as to the scope of the servant’s employment, when no means of transportation, where transportation is reasonably required, is afforded, by the master, we think the servant is entitled, within the scope of his employment, to use the usual and customary method of transportation available to accomplish the purpose for which he was employed. The almost universal method of transportation now used in such cases is by automobile.
Under the Texas cases above cited, the nature of Deaton’s duties, the methods used by him at the time, and the right and authority of appellant to exercise complete control over both his work and the time and manner in which he should accomplish it, we conclude that Deaton was acting within the scope of his employment at the time of the collision; and that the use of his own car was merely a mode ‘of discharging the duties for which he was employed, and was but incidental thereto.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.