Cannan v. Dupree

294 S.W. 298, 1927 Tex. App. LEXIS 245

• Court: Court of Appeals of Texas
• Decided: March 24, 1927
• Docket: No. 3372. [fn*]
• Status: Published

Opinions

^* Writ of error refused May 11, 1927. The court refused to give the appellant's requested peremptory instruction to the jury, and error is predicated upon the refusal to grant that request. In an able way the appellant insists that the court should have instructed a verdict in her favor, for the reasons that: (1) In order to hold appellant liable for the injury, the relation of master and servant must have existed between her and Sid Taylor with respect to the driving of the automobile, and which relation was not proven; and (2) as established by the evidence, the automobile was being driven by Sid Taylor under an arrangement by which, in legal effect, he was merely a gratuitous bailee, and therefore, if he were in any manner negligent, such negligence could not be legally imputed to appellant. It is believed that there was no error. It is not easy to perceive in the circumstances of the present case why the owner of the automobile should not be answerable to appellee for negligence on the part of the driver. The full fact was established that appellant, after driving her automobile a part of the way, asked Sid Taylor "to drive her car — to take the wheel" the remaining way of the contemplated journey to Rodgers Lake. The appellant herself "asked Kirby Dupree (appellee) to get in my car in my place." Although the appellee paid no fare, yet he was lawfully in the automobile, being expressly invited and directed by the appellant herself to ride therein for passage to the end of the journey contemplated; and the duty arose on the part of appellant to use reasonable care to transport and set him down safely at the point of destination. Mackenzie v. Oakley, 94 N.J. Law, 66, 108 A. 771; Spring v. McCabe, 53 Cal.App. 330,200 P. 41. And the owner of the automobile would be answerable for negligence on the part of the driver. The mutual purpose and intention was to have Mr. Taylor specially "drive the car" to the lake as a means of transporting the parties therein. Appellant did not lend the automobile to Mr. Taylor to use at his will, and he was not to act merely as the custodian of the same, but he was to drive it in completion of the journey undertaken, and there his use was to cease. His right was simply one of driving the automobile to the end of the journey, independent of any control of claim over it. Therefore he was not merely a bailee.

When Mr. Taylor was directed and intrusted to drive the automobile on the remaining part of the contemplated journey to Rodgers Lake, as a substitute to relieve the appellant, who had been driving, he for the time became her driver; and that he undertook to drive at her request can make no difference. When he was directed to assume, and was intrusted with, control of the automobile as a driver, he was, for all purposes of a driver, her representative or special servant in legal view; and, if careless, and injury resulted to occupants of the car, the owner was liable to the same extent as if he were the regularly employed driver. The driving was an act incident to service, and such special service was done by Mr. Taylor for the benefit of the owner of the automobile. 1 Labatt on Master and Servant, § 22. As a general rule, authority may be conferred by one person upon another to do specially an act for him without any agreement to compensate him and without any binding undertaking on the part of such latter person to execute the authority. 1 Clark Skyles on Agency, § 40; 2 C.J. p. 420. The principal may be held liable for wrongs immediately flowing from the act. 1 Clark Skyles on Agency, § 491; 2 C.J. p. 850. The evidence shows that Mr. Taylor was not familiar with the road, which was "a winding road through the woods, in and around trees, and not a graded road, and was pretty crooked." It was between "10:30 and 11 o'clock at night." He was passing rapidly at a turn in the road, and on the outer edge of it hit a stump at the side of the road, and the injury occurred. He said:

"As I made a turn I must have been going too fast to make it, and I ran off the edge of the road a little and hit the stump. * * * I was going, I guess, about 15 or 20 miles an hour. I was trying to catch the other car ahead of me."

That was an injury that probably would not have occurred, as the jury found, had the driver been using ordinary prudence and care. There was more than merely doubtful negligence in the act, in the view of the special circumstances.

The court correctly submitted pertinent issues to the jury, and there was no error in refusing the requested issues complained of in the assignments of error. Therefore we think the assignments of error should be overruled.

The judgment is affirmed.

Reasons for Denying Motion for Rehearing.

The court's charge defined ordinary care as "such care as an ordinarily prudent person would exercise under the same or similar circumstances." That form of charge has been repeatedly approved by the courts of this state. It is a clear and correct exposition of the rule as applied to the present case. An automobile driver owes his invited guest "ordinary care" as defined above. It would have been on the weight of evidence to have included as insisted, the words, "not to increase the danger to one riding by invitation by fast and reckless driving." Past driving or reckless driving, even though not exceeding the statutory limit of speed, may be evidence in a given case which bespeaks failure to exercise "ordinary" or "reasonable care" in the operation of an automobile.