Stapp Drilling Co. v. Roberts

471 S.W.2d 131, 1971 Tex. App. LEXIS 2119

• Court: Court of Appeals of Texas
• Decided: July 29, 1971
• Docket: No. 622
• Status: Published

Opinions

OPINION

SHARPE, Justice.

This appeal is from an order of the district court of Bee County, Texas, overruling the plea of privilege of defendant-appellant to be sued in Bexar County, Texas. Plaintiffs-appellees rely upon Subdivision 9a, Article 1995, Vernon’s Ann.Civ. St., to sustain venue in Bee County. Findings of fact or conclusions of law were not requested nor filed.

This suit was instituted by Mrs. Falba Jo Roberts, individually and as next friend of her minor children, and as personal representative of the Estate of Roy Roberts, plaintiffs, against Stapp Drilling Company and the Estate of Jesse Ray Hester, Deceased, defendants, for recovery of damages on account of the death of Roy Roberts resulting from an automobile collision occurring on July 22, 1968 in Bee County, Texas, between a vehicle then being operated by Roy Roberts and another operated by Jesse Ray Hester who was alleged to be an employee of Stapp Drilling Company and acting within the scope of his employment for it.

The parties stipulated for the purpose of the hearing on the plea of privilege, as follows: (1) that Roy Roberts, plaintiffs’ decedent is dead; (2) that plaintiffs have suffered damages under law as a result of his death; (3) that Roy Roberts died as a result of an automobile collision that occurred on July 22, 1968, on U.S. Highway 59 at approximately 11:15 A.M.; (4) that on the occasion in question, Jesse Hester was guilty of negligence, proximately causing the collision and death of Roy Roberts, and that such negligence occurred in Bee County, Texas; (5) that on the date in question and for some days prior thereto, Jesse Hester was and had been an employee of defendant Stapp Drilling Company; and (6) that Jesse Hester was employed as a roughneck for the defendant, and had been working at a job-site near Goliad, Texas.

Thus, the only issue left to be resolved was whether or not at the time in question Jesse Hester was acting within the scope of his employment thereby rendering defendant Stapp Drilling liable under the doctrine of respondeat superior.

Appellant’s single point of error asserts that the trial court erred in overruling its plea of privilege because plaintiffs failed to establish that Jesse Hester was acting within the course of his employment at the time of the collision made the basis of this suit and thus failed to prove a cause of action for venue purposes against appellant as required by Section 9a, Art. 1995, V.A.C.S.

In support of their position that Jesse Hester was acting within the scope of his employment at the time of his collision, plaintiffs offered the deposition testimony of Anna Hester, the widow of Jesse Hester, deceased. Mrs. Hester testified in substance as follows; She lives in Beeville, Texas, and is the widow of Mr. Jesse Hester, who was killed on July 22, 1968 in an automobile accident in Bee County, involving Mr. Roy Roberts. For three days prior to the accident, July 19, 20 and 21, 1968, her husband had been working as a derrick hand for Stapp Drilling Company near Goliad, Texas. Mr. Jeff Washburn was the toolpusher on that rig. Mr. Hester had not worked continuously prior to that period of time, having been off work for approximately three months. Mr. Hester came home from work at about 7:30 P.M. on Sunday, the day before the accident. He told his wife that he was going to be with Tubby, his brother, for a while and would be back later. For the sole purpose of showing Mr. Hester’s state of mind as to whether he expected to go to work on the following day, the trial court admitted the deposition of Mrs. Hester to the effect that Mr. Hester said that he didn’t think they would be working the next few days, that it had rained over there and it was pretty wet to get in there and they might call him in the morning if they needed him. The following morning at about 6:30 A.M., Mr. Washburn, the tool-pusher for Stapp Drilling Company, called the Hester residence on the telephone and talked to Mrs. Hester. Washburn said that he needed Jesse to come out there. Mrs. Hester told Washburn that Jesse was not home at that time. Washburn said “as soon as Jesse — Jesse gets in to have him come out there in his own car.” Mrs. Hester also testified that Washburn said he needed Jesse to help move the rig. Jesse Hester arrived home about 10:30 A.M., and Mrs. Hester told him what Jeff Washburn had said. Mr. Hester washed up and changed clothes and left in his own car. Mrs. Hester further testified that her husband was paid every two weeks when working for Stapp Drilling Company. She thought he was on an hourly wage and was paid for the time he actually spent on the rig. Mrs. Hester said her husband usually would leave for work at about six and the working day at the rig started about seven in the morning. She did not know whether her husband was actually doing anything for Stapp Drilling Company at the time the accident happened.

In the case of International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039 (1891) our Supreme Court announced some of the basic rules applicable here as follows: “Where a recovery is sought of the master for an injury inflicted by his servant, the plaintiff must show that the servant did the wrong while acting within the scope of his employment. * * * But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed.”

In 52 A.L.R.2d 287 an annotation appears on the subject “Employers liability for negligence of employee in driving his own car.” At page 303 of the annotation, one of the applicable general rules is set out as follows :

“The courts have recognized that the mere fact that one in the general employment of another, driving the employee’s own vehicle, in traveling to his job is insufficient, in the absence of special circumstances, to justify the conclusion that the employee is acting in the scope of his employment so as to charge the employer with responsibility for the negligent operation of the vehicle.”

The Texas cases cited in support of that statement are Antilley v. Jennings, 183 S.W.2d 982 (Tex.Civ.App. Eastland, 1944, wr. ref.) ; Reddick v. Prairie Oil & Gas Co., 51 S.W.2d 735 (Tex.Civ.App., Amarillo, 1932, wr. ref.); Lofland v. Jackson, 237 S.W.2d 785 (Tex.Civ.App., Amarillo, 1950, wr. ref. n. r. e.); Fountain v. Walker, 260 S.W.2d 717 (Tex.Civ.App., Eastland, 1953, wr. ref. n. r. e.) ; Norvell Service Company v. Spell, 288 S.W.2d 133 (Tex.Civ.App., Beaumont, 1955, wr. ref. n. r. e.) ; Bishop v. Farm & Home Savings & Loan Ass’n, 75 S.W.2d 285 (Tex.Civ.App., Eastland, 1934, n. w. h.).

Also on page 303 of the A.L.R. annotation it is stated:

“If the employee’s use of his own car in the business can be found to have been authorized, there still remains the question whether, at the time of the accident in suit, the car was being so used. This issue is ordinarily determined under the same tests and in the light of the same factors as where the employee is using the employer’s car, with the important distinction, however, that where the employee is using his own car the presumption or permissible inference of use in the scope of employment which arises from a. showing that one in the general employment of the car owner is driving it, appears to be inapplicable.”

In the leading case of American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409 (1936) it appeared that one W. W. Saunders was an agent (as distinguished from an employee) of American National Insurance Co. Saunders ran his car into Denke and Shephard while he was driving across the city of Galveston for the express purpose of soliciting insurance. The court held in part as follows:

“Without undertaking to comment upon the various terms of the written contract between the insurance company and Saunders, we think we may safely and confidently say that it is undoubtedly one of agency. Elimating all matters of definition and distinction, it is obvious we think that Saunders was in common and everyday parlance an ‘insurance agent,’ and, as such, plaintiff in error was his principal. That he was not a ‘servant,’ within the usual significance of that term, seems to be obvious. See American Savings Life Insurance Company v. Riplinger, 249 Ky. 8, 60 S.W.2d 115. Therefore, in considering the liability of plaintiff in error for the tor-tious acts of Saunders, we must apply the principle governing in such matters where the relationship of principal and agent is involved, and as particularly applicable in cases of this special class.

In section 250 of the Restatement of Law of Agency by the American Law Institute, it is said:

‘Except as stated in Section 251, a principal is not liable for physical harm caused by the negligent physical conduct of an agent, who is not a servant, during the performance of the principal’s business, unless the act was done in the manner directed or authorized by the principal.

‘Comment:

‘(a) A principal employing another to achieve a result but not controlling nor having the right to control the details of his physical movements is not responsible for incidental negligence while such person is conducting the authorized transaction. Thus, the principal is not liable for the negligent physical conduct of an attorney, a broker, a factor, or a rental agent, as such. In their movements and their control of physical forces, they are in the relation of independent contractors to the principal. It is only when to the relationship of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relationship of master and servant, that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor.’

This statement of the law is adopted by the court as applicable to these cases. The exceptions enumerated in section 251 have no application here.

We are brought, therefore, to the precise inquiry as to whether or not in this instance Saunders, in his capacity as agent, also occupied the further capacity of servant of the insurance company in the matter of operation of the automobile. It is settled that ‘the test of one's liability for the act or omission of his alleged servant is his right and power to direct and control his imputed agent in the performance of the causal act or omission at the very instant of the act or neglect.’ Putting the matter in a different way, it may be said that a master is liable for acts of his agent under the doctrine of respondeat superior only where the relationship of master and servant exists at the time and in respect to the very thing causing the injury and from which it arises. Trachtenberg v. Castillo (Tex.Civ.App.) 257 S.W. 657; Leachman v. Belknap Hardware & Mfg. Co., 260 Ky. 123, 84 S.W.2d 46; Standard Oil Company v. Parkinson (8 Cir.) 152 F. 681, and authorities cited in those cases. The Supreme Court of Tennessee has in several cases reiterated the language of Judge Lurton as follows: ‘In every case, the decisive question is, had the defendant the right to control in the given particular, the conduct of the person doing the wrong.’ See Income Life Insurance Co. v. Mitchell, 168 Tenn. 471, 79 S.W.2d 572, 574.

While in principle these cases are controlled by the decision in the case of National Cash Register Co. v. Rider, 24 S.W.2d 28, in which the opinion of the Commission of Appeals was adopted by the Supreme Court, yet counsel for defendants in error forcefully argue that these cases are distinguishable from that one, because the control which plaintiff in error had the right to exercise over Saunders extended to more details of the work than was exercised over Rider in the case mentioned. They in effect seek to show that the exercise of control over Saunders was such as to constitute him a servant. We are unable to agree with this contention. In our opinion, while there are numerous provisions in the contract which indicated control over Saunders, yet we think the control evidenced by such provisions related primarily to the contractual features of his employment, and to the attainment of ultimate results, and not to ‘physical details as to the manner of performance’ of his movements while soliciting, collecting, attending meetings, etc. Falling short in this last particular, the control was not such as to create liability on the part of plaintiff in error for his negligent acts in the operation of his wife’s automobile; although at the time he may have been engaged in the furtherance of the company’s business.”

In the instant case it is apparent that the plaintiffs-appellefes could not fasten liability on Stapp Drilling Company by showing only that Mr. Hester was going to his place of work in his own car. Standing alone, that evidence would not be legally sufficient to raise an issue that Hester was acting in the scope of his employment.

Appellees apparently recognize the above-stated rule, and in support of their position that Mr. Hester was acting within the scope of his employment for Stapp Drilling Company contend as follows: that the instant case is materially indistinguishable from those cases where the employer sent the employee on a “special mission” and was held liable to third persons for the negligence of the employee; that there was a special benefit to appellant because its tool-pusher ordered Hester to use his own car so that he could get to the place of work the quickest way possible and thereby save time; and that Hester was the servant of appellant at the time of the accident and that appellant was exercising effective control over him.

It is generally recognized that there is an exception to the “going to and coming from” work rule as it relates to master-servant relationships which is known as the “special benefit” or “special errand” exception. The rule and exception are stated in 8 Am.Jur.2d, Automobiles and Highway Traffic, Sec. 630, page 184 as follows:

“It is generally held that getting to the place of work is ordinarily a personal problem of the employee and not a part of his services to his employer, so that in the absence of some special benefit to the employer other than the mere making of the services available at a place where they are needed, the employee is not acting within the scope of his employment in traveling to work, even though he uses his employer’s motor vehicle, and therefore the employer cannot be held liable under the doctrine of respondeat superior to one injured by the employee’s negligent operation of the vehicle on such a trip.”

The evidence here reflects that when Mr. Hester returned to his home on Sunday evening — on the day preceding the date of the accident — he did so for personal reasons. There existed a doubt about whether it was possible to work at the job-site for a while and Hester expected his employer to call him on Monday if they needed him. When Mr. Washburn, appellant’s toolpusher, called about 6:30 A.M. on Monday he was advised by Mrs. Hester that her husband was not at home. Washburn, according to Mrs. Hester, then advised her to tell Mr. Hester, when he returned home, to come to the place of work in his own car, which she did. There is nothing in the record to show that Mr. Hester usually travelled to and from work other than in his own car. There is also no evidence showing in connection with his travel to work that Mr. Hester was ordered by his employer to do anything in connection with the performance of the work at the job-site or elsewhere. In short, Mr. Hester was returning to the place of work in order to perform his duties for his employer there. Under these conditions we do not perceive that there was a special mission ordered or special benefit received by the employer. Mr. Hester was engaged in furtherance of the master’s business, if at all, only in the sense that he was travelling to the place of work to make his personal services available. We believe that appellees’ reliance here on the case of Friend-Rowe Motor Co. v. Ricci, 293 S.W. 851 (Tex.Civ.App., Beaumont, 1927, wr. dism.) is misplaced. There the court held that there was evidence which authorized the jury to conclude that the employee who was on his way to work was also using the car to promote his master’s business by seeking to make a sale of a car.

Because of Mrs. Hester’s deposition testimony, we must assume that Mr. Wash-burn expressly authorized Mr. Hester to use his car in travelling to work on the day of the accident. However, that fact does not establish that appellant had the right to require Mr. Hester to use his own automobile, and there is no evidence that appellant had that right as a part of its contract of employment with Hester. Additionally there is no evidence to show that appellant had the right to direct Hester how to use his automobile or what route to follow in travelling to the place of work. It thus appears that there is no evidence to show that appellant, the master, had the right and power to control Mr. Hester, the alleged servant, “in the performance of the causal act or omission at the very instant of the act or neglect;” or that “the relationship of master and servant exists at the time and in respect of the very thing causing the injury and from which it arises.” American Nat. Ins. Co. v. Denke, supra. In addition to the cases heretofore cited in connection with the annotation in 52 A.L.R.2d 287, see also Parmlee v. Texas & New Orleans Railroad Company, 381 S.W.2d 90 (Tex.Civ.App., Tyler, 1964, wr. ref. n. r. e.); Glasgow v. Floors, Inc. of Texas, 356 S.W.2d 699 (Tex.Civ.App., Dallas, 1962, n. w. h.); Church v. Ingersoll (CA 10, 1956), 234 F.2d 176.

For the foregoing reasons it appears that there is no evidence to raise the issue or to support a finding that Mr. Jesse Hester was in the scope of his employment with appellant at the time of the accident in question, which results in a failure to establish the requisite master-servant relationship and a cause of action against appellant for venue purposes. The trial court should have sustained appellant’s Plea of Privilege.

The judgment of the trial court is reversed and judgment here rendered that appellant’s Plea of Privilege be sustained and this cause transferred to a district court of Bexar County, Texas.