Wheaton Van Lines, Inc. v. Mason

925 S.W.2d 722, 1996 WL 283897
CourtCourt of Appeals of Texas
DecidedAugust 15, 1996
Docket2-95-073-CV
StatusPublished
Cited by30 cases

This text of 925 S.W.2d 722 (Wheaton Van Lines, Inc. v. Mason) 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
Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 1996 WL 283897 (Tex. Ct. App. 1996).

Opinions

OPINION

DAY, Justice.

Wheaton Van Lines, Inc., an interstate moving company, appeals a $1.3 million judgment that held Wheaton hable for personal injuries suffered by David Mason during an assault committed by Michael Mullinax, an employee of Wheaton’s local booking agent, Absolute De-Lux Movers. After a jury trial, the jury answered issues favorably to Mason, and against Wheaton, on three separate theories of recovery: violations of the Texas Deceptive Trade Practices — Consumer Protection Act1 (DTPA), negligent hiring, [725]*725and vicarious liability due to Wheaton’s agency relationship with Absolute De-Lux. Because we find as matters of law that (1) any DTPA violations committed by Wheaton were not the producing cause of the injuries complained of; (2) Wheaton owed no duty to Mason under the facts of this ease; and (3) that Absolute De-Lux Movers’ actions were not within the scope of the agency relationship with Wheaton, we reverse the judgment of the trial court and render a take-nothing judgment against Mason on his claims against Wheaton.

THE FACTS

Appellant Wheaton Van Lines, Inc. is a moving company headquartered in Indianapolis, Indiana, with Interstate Commerce Commission authority to perform interstate moves only. Wheaton has no authority to perform intrastate or local moves, and would be subject to regulatory sanctions if it were to do so. To assist with interstate moves, as well as to solicit business, Wheaton has agency contracts with approximately three hundred local movers nationwide. These local agents provide several services for Wheaton that include acting as a “booking agent,” which generates a cost estimate, and acting as an “origin agent,” which involves dismantling and packing household goods before the truck arrives. Also, the agents are to provide Wheaton with helpers to load the truck if helpers are available at the time needed. Wheaton’s agents are free to perform intrastate and local moves on their own, provided they have the appropriate regulatory permits, but any such moves are separate from Wheaton’s interstate business and are done without Wheaton’s involvement. Wheaton’s agents are allowed to advertise Wheaton’s interstate services using Wheaton’s name and logo.

One of Wheaton’s local agents was David Lux, a sole proprietor doing business as Absolute De-Lux Movers. Absolute De-Lux was primarily a local mover. The only business Absolute De-Lux did with Wheaton involved interstate moves, and that involved only about six moves a year, or less than 10% of Absolute De-Lux’s business.

Under the agency contract between Whea-ton and Absolute De-Lux, orders for Whea-ton’s interstate services could be solicited and received by Absolute De-Lux. Wheaton received no money from any intrastate or local moves conducted by Absolute De-Lux. When Absolute De-Lux provided helpers to Wheaton for interstate moves, the helpers were paid directly by Wheaton, not by Absolute De-Lux.

In May 1991, appellee David Mason was moving from one apartment to another within the same apartment complex. At trial, Mason testified he was aware of Wheaton’s reputation as a national company. Mason located a Yellow Pages advertisement where he saw the name of Wheaton prominently displayed. The advertisement also included Wheaton’s Good Housekeeping Seal of Approval and an endorsement as the official movers of Steinway & Sons pianos. This advertisement was paid for and placed by Absolute De-Lux, without the express knowledge or consent of Wheaton Van Lines, Inc. Mason testified that he called the number listed in the advertisement and the telephone was answered with a greeting that included something about Wheaton in it. At trial, Lux denied that he or his employees ever used the name “Wheaton” in a telephone greeting. Mason arranged for his move to be performed on Sunday, May 19, 1991. On that day, two of Lux’s employees, driver Craig Pritchett and moving helper Michael Mullinax, appeared with a truck and trailer bearing the name “Absolute De-Lux Movers.” Mason testified that he asked the men if they were associated with Wheaton and that Pritchett replied they do the local moves for Wheaton. Lux testified at trial that he never instructed any employee to represent that Wheaton was involved in a local move. Lux also testified that Wheaton receives no money from local moves performed by Absolute De-Lux. Mason admitted he had no knowledge of the nature of the relationship between Absolute De-Lux and Wheaton, whether Wheaton can move locally, whether Wheaton received any money or benefit from his local move, whether Pritch-ett or Mullinax were employees of Wheaton, or whether Wheaton had anything to do with placing the Yellow Pages advertisement. [726]*726The move required only one van load and took approximately three hours.

Shortly after the move, Mason discovered that a white box containing music compact discs was missing. He notified Absolute De-Lux. The next day, Monday, May 20, 1991, Lux contacted Mason and stated that two of his other employees had seen Mullinax with a white box shortly after the move. Lux notified the police about the theft and unsuccessfully attempted several times to contact Mul-linax through Mullinax’s mother.

Mullinax contacted Lux on Thursday, May 23, 1991 from a local jail in another municipality. Mullinax was in jail on unrelated charges and asked Lux for his final paycheck. Lux, believing he could not legally withhold Mullinax’s paycheck, agreed to give Mullinax’s wife the check. But Lux also told Mullinax that he wanted the white box returned and that the check would be Mulli-nax’s last because he was fired for the theft. Mullinax’s prior criminal record included four drug offenses and convictions for burglary of a habitation and robbery causing bodily injury. Lux testified that he neither knew about nor did he check into Mullinax’s criminal record when he hired Mullinax. At the time, it was not Lux’s policy to cheek an applicant’s criminal background.

On May 30, 1991, seven days after being terminated from Absolute De-Lux and eleven days after moving Mason, Mullinax pounded on the door of Mason’s new apartment late at night. As Mason was calling 911, Mullinax broke down the door and attacked Mason with a butcher knife. During the attack, Mullinax cursed Mason for accusing him of stealing the compact discs. Mulli-nax also made Mason lie on the floor, and Mullinax then beat Mason with a fireplace poker. Mason had left the phone off of the hook, so the 911 operator recorded the attack. The police arrived and arrested Mulli-nax, who was later convicted of attempted murder. Mason suffered broken bones in and severe cuts on his hands, as well as severe lacerations on his forehead and scalp and a possible skull fracture. In statements to the police, Mason referred to Mullinax as an employee of Absolute De-Lux.

Mason sued Lux and Wheaton for the assault. Mason asserted that Lux and Whea-ton were negligent in hiring Mullinax and that Wheaton was negligent in failing to ensure that Lux checked the criminal background of applicants wanting to work for Absolute De-Lux. Mason also alleged violations of the DTPA against both Lux and Wheaton, as well as Wheaton’s vicarious liability under an agency relationship theory. The jury found both Lux and Wheaton negligent, apportioning 25% of the negligence to Wheaton. The jury also found DTPA violations by both Wheaton and Lux, apportioning 50% of the responsibility to each. Additionally, the jury found Lux to be the agent of Wheaton with regard to both the negligent conduct and the DTPA violations.

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925 S.W.2d 722, 1996 WL 283897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheaton-van-lines-inc-v-mason-texapp-1996.