J v. Harrison Truck Lines, Inc. v. Larson

663 S.W.2d 37
CourtCourt of Appeals of Texas
DecidedNovember 10, 1983
DocketB14-82-805CV
StatusPublished
Cited by23 cases

This text of 663 S.W.2d 37 (J v. Harrison Truck Lines, Inc. v. Larson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J v. Harrison Truck Lines, Inc. v. Larson, 663 S.W.2d 37 (Tex. Ct. App. 1983).

Opinions

OPINION

PAUL PRESSLER, Justice.

This is an appeal from a judgment for the plaintiff in a suit brought under both the Wrongful Death Act, TEX.REV.CIV.STAT. ANN. art. 4671 (Vernon 1982), et seq., and the Survival Statute, TEX.REV.CIV.STAT. ANN. art. 5525 (Vernon 1982). Appellees sought damages from Harrison for the death of Cecile Yvonne Fischer, under the theory of respondeat superior. Appellee, John Fischer, also sued Willie Webb, Harrison’s driver. Judgment was against both Harrison and Webb. Webb has not appealed.

On Saturday, May 28, 1977, Willie Webb was employed by J.V. Harrison as an over-the-road truck driver. For some time Harrison’s trucks had hauled large coils of steel from Houston to Merco Manufacturing m Dallas. On the day in question, Webb was making the Houston to Dallas trip hauling three coils of pressed steel. Each coil weighed between 17,000 and 19,000 pounds. Accompanying Webb on this trip was Cecile Yvonne Fischer. Webb and Fischer had been friends for some time. They met the night before the accident at a bar where she told Webb that she did not want to go home that night. Webb asked her to accompany him on his run to Merco. About midnight, they left for Dallas in the truck. During the trip, Webb stopped at a rest area near Huntsville. Because of the long rest stop, Webb did not arrive at Merco until after the other Harrison drivers making the Houston to Dallas run had already unloaded and departed.

The coils were to be unloaded by a crane. Due to the length of the flat bed trailer and the size of the building where the crane was located, all three coils could not be unloaded at the same time. Unless the front coil was moved toward the other two coils, the truck driver would have to back the trailer several times. Although that method would take only four or five minutes longer, the standard practice of the Harrison drivers was to roll the front coil toward the other two, secure the loose coil, back the truck and unload all three coils. To roll the front coil on the trailer, the chains securing the coil and the four by four boards would be removed. The driver would then back the truck and tap his brakes causing the front coil to roll toward the other two coils. After the rolling coil hit the other two and before it rolled back to the front of the trailer, someone would place a four by four board in front of the coil. The testimony was conflicting as to whether this procedure could be accomplished by the driver alone or whether a second person was required to place the board in front of the coil.

Upon arrival Webb unfastened the front coil and started to back the truck as was standard procedure among Harrison drivers. According to Harley King, a Merco employee, Webb backed quite rapidly and [40]*40when he hit the brakes, the detached coil hit the other coils and bounced ten to fifteen feet instead of the usual one or two feet. Ms. Fischer was outside the truck and the coil rolled toward her. She attempted to stop it by throwing a two by four board in front of it. The coil did not stop and fell on her cutting off her right arm and then coming to rest on the lower half of her body.

King ran to the plant office and phoned for an ambulance and for a fork lift to move the coil. King testified that when he returned, Ms. Fischer’s eyes were open and moving but she appeared to be unconscious. While King was making the phone calls, Webb went to Ms. Fischer’s side. He testified that she said, “Willie, help me.” A few minutes later Ms. Fischer died.

John D. Fischer, the surviving husband of Cecile Fischer, sued both Harrison Truck Lines and Webb. The children from a previous marriage and the parents of the deceased sued Harrison alone. The two suits were consolidated and tried to a jury. It found that Webb was engaged in the service of Harrison Truck Lines and was acting in furtherance of its business. The jury also found that Webb’s negligence proximately caused the occurrence and held for the appellees on remainder of the special issues. Judgment was rendered thereon.

Appellant’s first point of error contends that the trial court erred in denying its motion for judgment n.o.v. because the special issues submitted and the jury findings did not support the judgment. The second point of error alleges the trial court’s overruling of Harrison’s objections to the charge was error. The key issue in both is whether the trial court submitted proper special liability issues under the theory of respondeat superior. Appellant argues that the trial court failed to submit a necessary and controlling issue, and without it the verdict does not support the judgment.

The trial court must submit the controlling or ultimate issues raised by the pleadings and evidence. Tex.R.Civ.P. 279. Braugh v. Phillips, 557 S.W.2d 155 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Once the controlling issues have been submitted, it is not error to refuse to submit other issues and various shades of the same issue. Braugh, supra.

Appellant claims that the trial court erred by not submitting a special issue inquiring whether Webb was authorized to accept riders and to ask for assistance in unloading. Appellant argues that if Webb were not so authorized and were expressly told not to take riders or ask for assistance, appellant could not be held liable under the doctrine of respondeat superior. We disagree. A master may be held liable for the act of his servant, even if the act is contrary to express orders, if it is done within the general authority of the servant. Medical Slenderizing Inc. v. State, 579 S.W.2d 569 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r.e.); International G.N.R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039 (1891).

The general rule is that a master is liable for the acts of his servant committed within the scope of the servant’s authority, in the furtherance of the master’s business and for the accomplishment of the object for which the servant is employed. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940). However, appellant argues that if the agent or employee lacked authority to invite or permit a guest to ride in the employer’s vehicle, the principle or employer will not be liable to the guest for injuries sustained while riding in the vehicle and caused by the employee’s negligence. In support of this proposition appellant cites Kirklin v. Standard Coffee Co., 114 S.W.2d 263 (Tex.Civ.App.—Dallas 1938, no writ); Magnolia Petroleum Co. v. Winkler, 40 S.W.2d 831 (Tex.Civ.App.—Eastland 1931, no writ) and Thomas v. Southwestern Tumber Co., 181 S.W.2d 111 (Tex.Civ.App.—Waco. 1944, no writ). In our case, the fact that Webb may not have been authorized to accept riders is irrelevant. The invitation to ride was an act completely independent from the events during the unloading of the coils that caused the death of Ms. Fischer. Here the appellees do not complain of the invitation to ride but rather [41]*41the acts surrounding the unloading of the truck.

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J v. Harrison Truck Lines, Inc. v. Larson
663 S.W.2d 37 (Court of Appeals of Texas, 1983)

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663 S.W.2d 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-v-harrison-truck-lines-inc-v-larson-texapp-1983.