Case Information
*1 GENERAIL June 2, 194g
HOn, ~Hemer Garrison, Jr., Direater Safety
Department of Public
Austin, Texae Opinion NOi va5gs.
R0: The applicability of the chauffeur’s license re- uirements af Article 2 wb, v* c, S,., te one employed a8 a general laborer and ywd man. who oc~aslenally drivea his qploper’ a car carrying passongora.
Dear’ Colonel Garrison:
Xe quote from’your request- fer an’epinian as follows, in part:
” would a. person employed as a yard &‘a&4 general laborer who occasion- ally drives his cmnloyer?s car with the em- ployer and/or his family as passengers be a ohauffeurn /rithln the definition ef Art., 66$7b, Sec. 1 (o)~, V. C, S,)? (Parkthat- ical addition ours)
Turning to Article 6687b V, C, S. .bei Acts page 245 dhapter 173, we%nd 1941 47th Le Mature in S&ion 1 7 01, the kollewing defin$tion:
fl* Chauffeur’ 6 Every per&on who i8 ,1, the driver for wages compensation or
hire, or for far.e , oh a motor vehi&e
transporting pa638,engefd.v
Section 2 of the foregoing Act reads a8 fel- lows : “No person, except those hereinafter
expressly exempted, shall drive any motor vehicle upen a highway in this State unless such,person has a valid license a8 an oper- ator, a commerclnl operator, or a chauffeur 5
Hon. Homer Garrison, Jr*, Page 2, V-593.
- under the provisions of this Acten
The question presented, then, is whether the statute requires a person to secure a cbuffeurta li- cense who drives a motor vehicle for his employer carry- ing parsengers as an incident to the performance 'of his regular duties for which he is employed a'nd~ compensated.
In order to resolve this issue we deem it ap
propriate to note the legislative history ef the lieens- ing statute in so far a8 it is applicable to "chauffeur*, as the statutory definstion has .undergone substantial changes,
When first passed in 1917 as Acts 35th Legis- cha ter 207 page 475 codified in VemonQi An- lature C&v 1 Statuies as Article ,6687, a Wchauffeurn notate4 P
was defined as:
[11] one whose business er ocs,m-- tion ii ipirating a mo% io* vehicle ?ZFZm- FatSon, wages or hire. o o n (Emphasis supplied throughout this opinion) This statute was inte,rpreted by the Court of Criminal Appeals in Matthewst. State, 85 Tex:Cr$m+ Rep. 469,' 214 S. Ws 339 (19191, 'as ~ns2. requfriag a~~chauffeur(8 license of one who drive8 a car as fan in&dent to his prin- cipal duties or occupation.
This requirement was carried foruard in Acts 1935; l+&thhLegislature,~2nd Called Session page 1785, chapter 466, wherein a nchauffei@ Wa8: deflned,as:
*Every person who' is employed~ for the rinci al purpose of operating a motor vehi- b&r every person who drives a motor vehicle while in use fer hire," However that definition ,was radically than ad in 1937,bp Acts 45th Legislature, page 752, cheater 3 9, % to define a "chauffeur" as:
"Anv nerson who 'onerates a motor rehi- ~kee$&%%~wh$%? %r%~~~~d% contractor, 'whether bid in'salary or commis- sion; and every person who operates, a 'aotor vehicle while such vehicle is ifi nose for hire or lease,"
Hon. Homer Garrison, Jr., Page 3, V-593;
Under the last definition sat out above, this Department held by former Opinion No. 0-586, that an employee who drives hi8 employer’s car as au incident to his employment for which he is compensated, is re- quired to obtain a chauffeur’s license.
This opinion wa8 quoted.from at length in Maryland Casualty Co. v. Cronholm, 32 F. Supp.~ 371,ti the Federal District Court for the Southern District of Texas, opinion by Judge AMred. It was them said:
“There are no Texas decis~ions constru- ing this. part of the statute as to whether a .person, employed a8 was Brinkley, is a 1 chauffeur’ . The statutory definition is, however, .very broad. The. test 8eem8 to be: (1) Did such person operate the motor vehi- cle in whole part time employment; (2) was, he at such time an employee, servant agent, or independent contractor; and ($1 was he paid for such service? ,
“As applied to Brinkley, each of these question's must be answered in the afflrma- tive. He .operated the, truck; he was, at such time, the employee and servant of the insured; and he received pay for it. The fact that Ino Dart of the salarY.Daid to him was apportioned or allocated .as compen- sation for such occasional and incidental operation of said truck’ &es not necessar- he was note paid for such serv- ily mean that ice; only that a ortion of his pay was not allocated express y for the service. He P
id nevertheloes. . Nor would the fact wP8 Yi- that 8 only &ova the truck toccasionally
and incidentallyt, averaging not more than one hour per day, prevent hi8 coming within the broad terms of the statute”. (Emphasis by the Court)
In 1941, the presbnt definition of Wumffour* became effective, and we are no% coufronted with the prob- lea of whether it includes within'its scope an employee who engages in incidental or casual duties as a chkffeur for hi8 emplover. as WI8 Indimv the 1937 amendment; or whether'it-rejuires that the emplbyee's d&es as a'.' chauffeur be hi8 incipal duties or occupation, as wa$i,:j true under the 1 Act and the 1935 Act. *4 .- - _ .._ .
Ron+ Homer Uarriaon, Jr., ?age 4, V-593.
It will be observed that u&or the resent definition we have neither the clear-cut requ rement I rator must have iOr his prinainal purpose that the o tho.eperat r en o? a motor vehicle for hire nor do we have the atntitheti~.-requirement in the, de#inition that an operator who’oparates a motor vehicle for w pur- poemas an emplo ee or servant for cem naatlon or hire is that is included. *s the prosoat statute !L icatos a chuffour ‘is a udriver f*r wages, cemponsation or hlro, ‘or for fare, of a motor vehicle transperting pa8- eengers” .
Wo think ‘a mview of the decisions in other jurladiotions,.~hav statutory definitfons of a ~ahauf- ?a four” which l ro simi r to that of the T-s ~atatut.0, will prove enlightening.
Ia state v, Wimmr 117 W. Va. &U’.lt6 S.E.
133 West Virginia Su~ome’C&t .it ?a8 held that a ,fieid superintendent ef an oil &any at a stated sal- ‘vary, who operated his omplb r!8 car tb tako him areuad
to variotis leases operated p his ample er gnd who.ec- F
chsionallp hidled things in such cart L ‘, t uere needed enthe.~various j&s, wa8 net a Chiioifeurwbe-needed a-:‘,- iSiati6urt8 license withiiiii neaning l f a statute which defined.‘*ohPutfeurn~as including ‘an ,wrsen who, o rates ‘: ’ for hire, er who recoires pay direct 3: y or indirect r .y te operate, any motor vehicle or tractor, or who operates a motor vehicle for the transportation of persons or property ‘or both, for compensation, upon’the public high- ,. wPg8”. ‘fhe Court spid:
WStatutes of the kind under considera- tion must be strictly cobtrued, and not ax: ten&d by im lication to parsoqs not coming clearly with % their terms. A practical con- struction of~the.statutory o? the deflaitien word !chauffeur~, . . . la piew of the penal-
.ty for operating without such a license. would include those who actually operate t$ the highways of the state an automobile, or tractor, in which they have an interest, for : hire who are employed to ~operate the auto- moblie of aaether, As indicated in the defi- nition,.the fact that the rehicle~ is ~operated pr;lr in comtemplatien of compensation ,con- . . . ” ,~”
Hon. Homer Garrison, Jr., Page 5, T-593.
*If it had been the desire of the law- making body to require all who operate an automobile, as an incident to their regular employment to first secure a .chauffrurls li- tense It should have so wrovided". (Emphasis supplied 1
InDes Moines Rug Cleaning Co. v. Automobile Underwriters, 215 Iowa 246, 245 B. W. 215, an action on an insurance policy involved an interpretation of a definition of "chauffeur" which said:
"Any person who operates an iutomobile in the transportation of persons or.freight, and who receives any compensation for such services in wages, commission, or otherwise, paid directly or indirectly, who as owner or employee operates an automobile carrying passengers or freight for hire, including driirers of hearses, ambulances, passenger cars,, trucks, light delivery, and similar conwyances?i
$he Court held: . the term 'dhauffeurr ,as used in ” the s&;te means a paid operator'or employee, that-is, a person who'is'employed and paid by the owner of a motor vehicle to drive and at- tend to the car* and does not include operators who are not employed and paid for operating the motor vehicle, and therefore does not include.
an employee who receives his compensation for services rendered other than the operation of motor vehicles, although in performing;. such ser- vices he may incidentally operate a motor vehi- cle?.
Of similar import; we cite the following cases: State v. Depew ,175 &Id. 274, 1 A (2d) 627; Day P. Bush 18 La:App. 68i 139 So. 42; Comm. v. Cooper 19 Pai $st. R. 271, 37 Pa. ho. Ct. 277; 42 C. J. 743 119; r7cellent annotation on the subj,ect fad !!n 105 A. ii It.
We have reached the conclusion that the deter- mination of whether anemployee is a *chauffeur* within the definition set out in Article 6687b, Section 1 (01, is a question of fact. The. elements include: *6 Hon. Homer Garrison, Jr., Page 6, V-593,
(1) Was the employee driving the motor vehi- cle?
(2) Was the employee transporting passengers? (3) Was the employee acting within the scope of his employment, which contemplated that the duty of driving the motor vehicle be paid for by the employer through wages or compensation for such duty?
Upon the last element, we add that the ques- tion must be determined by then facts in each individual case, which precludesus from enunciating a general stilt that will govern all cases.
SUMMARY Article 66d?b, V. C. S., applies to re- quire anv erson to possess a chauffeur's li- oense who P 1) drives a motor vehicle, ~(2) is transporting passengers, land (3) 1s~ acting within the scope of his employment, which con- templates that the duty of driving the motor vehicle be paid for by the through wages or compensation for Sue
- These.'elements involve fact questions to be determined by the circumstances of each individual case. -'
Very truly yours, GENERAL OF TEXAS ATTORNEY .E>d
ATTORNEY GENERAL.
DJC:jmc