
    MAGNOLIA PETROLEUM CO. v. WINKLER.
    No. 875.
    Court of Civil Appeals of Texas. Eastland.
    June 12, 1931.
    Walace Hawkins, of Dallas, and Thos. K. Smith, and L. W. Sandusky, both of Colorado, for appellant.
    J. M. Harris, of Snyder, and Brooks & Woodward, of Big Spring, for appellee.
   FUNDERBURK, J.

On January 24, 1930, Magnolia Petroleum Company was engaged, among other things, in operating in its business, heavy trucks and motor vehicles over the Bankhead Highway in Mitchell and Howard counties. On that date a large truck alleged by plaintiff to be “such as is ordinarily used by oil companies in the transportation of heavy machinery, equipment and supplies,” and being at the time heavily loaded with machinery of some sort, was in sole charge of, and operated by, G. L. Nelson for said company, in discharge of the latter’s duties as employee. As the truck left Big Spring to go to latan, about twenty miles distant, the driver, in response to a solicitation from one, Oscar Winkler to be given a ride, consented and permitted him to get upon the truck., On approaching latan, according to the contention of Winkler, and. the findings of the jury in accordance therewith, Nelson, the driver, while the truck was in motion, commanded Winkler to jump off, which he did, and was injured. In this suit said Winkler recovered judgment for damages resulting therefrom, and the defendant has appealed.

Appellant’s first proposition asserts that plaintiff’s petition was subject to general demurrer, in that the alleged acts of negligence, if committed, were done and performed by the driver of the truck while and during the time he was acting beyond the scope and out of the course of his employment, and not in the performance of any duty to the defendant. The question thus sought to be presented is not one, we think, that properly arises upon a consideration of the sufficiency of plaintiff’s pleading, as tested by a general demurrer. It was alleged that the injuries and damages complained of were caused “by the wilful and wanton negligence of the defendant through its agent, the said Nelson, while he was in the course of employment for the defendant,” etc. (Italics ours.) As against a general exception, the pleading is thought to be not subject to the criticism urged. Although the allegations were general, we think the proper construction is that Nelson, the driver, in commanding plaintiff to jump off the truck, did so in the course of his employment.

By its third proposition, appellant contends that the evidence not only failed to show that the truck driver’s alleged willful acts, proximately causing plaintiff’s injuries, were committed as a servant of, or in the performance of any duty, actual or implied, for the defendant, but on the contrary established that his acts were the independent acts of the truck driver acting in his own behalf, or in privity with the plaintiff. This point has been given our most careful consideration. The undisputed evidence shows that Nelson had no authority to permit the plaintiff to ride on the truck. There was nothing in the design or the use of the truck to raise a reasonable inference that it was being operated for the transportation of passengers. Clearly then, the driver, in permitting plaintiff to get upon the truck, and in transporting him from Big Spring to latan, was not acting within the scope of his employment. No question, however, arises regarding the liability-of the defendant for permitting the plaintiff to ride upon the truck. Plaintiff was not injured as a result of being permitted to enter the truck, or to ride upon same. He was injured because he jumped off the truck while it was in motion. His sole contention, as limited by the verdict of the jury and made the basis of the judgment, was that Nelson, the truck driver, commanded him to jump off, and, because of that command, he jumped.

To ascertain the existence or not of defendant’s liability, it is well to look for a duty, if any, which it was owing the plaintiff, and which it failed to discharge. Unless there was a duty, there could be no liability.

No duty arose because of the immaturity and want of discretion in the plaintiff, because he was eighteen years, nine months and twenty-one days old; had done various kinds of work, including that of being manager of a grocery store; and he had experience in riding upon and alighting from trucks. Therefore, the principles of liability which were controlling in such cases as Cook v. Navigation Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52; Missouri, K. & T. Ry. Co. v. Rodgers, 89 Tex. 675, 36 S. W. 243; Smith Bros. v. Williams (Tex. Civ. App.) 294 S. W. 309, and Texas Co. v. Blackstock (Tex. Civ. App.) 21 S.W.(2d) 13, have no application. The principle of liability in those and like cases seems to be one analogous in some respects to that of discovered peril. Blossom Oil, etc., Co. v. Poteet, 104 Tex. 230, 136 S. W. 432, 35 L. R. A. (N. S.) 449.

Neither did any duty arise based upon the principles of discovered peril as applied to adults. The evidence does not suggest that, independently of the act of plaintiff in jumping off the truck, he was in a perilous position. Even if he was, such fact had nothing to do with his injury. If_ the principle of discovered peril could be extended so as to include the command to jump off, and the act of the plaintiff in jumping, plaintiff’s own evidence negatives the existence of any imminent peril. He testified that Nelson had slowed down the truck from twenty-five or thirty miles an hour to twelve or fifteen miles, tie further testified that one could have alighted from the truck going ten miles an hour. If, therefore, there was danger in jumping off the truck while moving at the rate of twelve to fifteen miles an hour, it was not, we think, that obvious and imminent danger upon which liability under the doctrine of discovered peril is predicated. Cockrell v. Texas & N. O. Ry. Co., 36 Tex. Civ. App. 559, 82 S. W. 529. As already said, to make it such, there would have to be added the fact of plaintiff’s immaturity and lack of discretion, which have no existence in this case.

Whether defendant could be guilty of negligence and therefore liable (unless excused by other facts), based upon the theory that Nelson, by giving the command in question, breached some duty which defendant owed to plaintiff, may be determined, we think, by tbe answer to a single question. That is: Was tbe driver, in commanding plaintiff to jump off tbe truck, by that very act, as distinguished from bis operation of tbe truck, performing a duty of bis employment, or, on tbe contrary, was be acting for bimself or the plaintiff? It may at once be taken for granted that, if be was acting for tbe defendant in giving such command, it was not in pursuance of any express authority. If tbe authority to give tbe command for the defendant existed at all, it was an implied authority. We assume, without deciding, that Nelson, tbe truck driver, occupied a position in tbe service of defendant analogous to tbe conductor of a. freight train in tbe' service of a railroad company, and that, as such, be had implied authority to eject trespassers from tbe truck. Denison, etc., Ry. Co. v. Carter, 98 Tex. 196, 82 S. W. 782, 107 Am. St. Rep. 626; Galveston H. & S. A. Ry. Co. v. Zantzinger, 93 Tex. 64, 53 S. W. 379, 47 L. R. A. 282, 77 Am. St. Rep. 829. Did Nelson command plaintiff to jump off in order to free the truck of bis presence as one not entitled to be thereon? Or was it for the purpose of completing tbe transaction by which be bad, without authority of his employer, used tbe truck to accommodate tbe plaintiff in giving him a ride from Big Spring to latan, tbe destination of tbe truck? Or was such command given for the purpose of preventing the employer from knowing that the employee bad permitted plaintiff to ride? It is wholly unimportant in tbe present inquiry that Nelson, in driving the.truck and controlling tbe operations thereof, was doing so in tbe discharge of his employer’s business. This we take to be an undisputed fact in tbe case. It is necessary to defendant’s liability that, in commanding plaintiff to jump off, that act must have been done in furtherance of tbe master’s business, and for tbe accomplishment of the object for which tbe servant was employed. International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; International & G. N. Ry. Co. v. Yarbrough (Tex. Civ. App.) 39 S. W. 1096. The command to “jump off” was of tbe same nature as respects tbe question of defendant’s liability as tbe act of the engineer and fireman in discharging tbe hot water upon Cooper in International & G. N. Ry. Co. v. Cooper, 88 Tex. 607, 32 S. W. 517, 518. In that case “tbe fireman and engineer were, at tbe time the injury was inflicted, in tbe employ of Campbell, receiver, and were engaged, in the performance of a service to Mm; that is, they were operating a locomotive, each performing his duty as engineer or fireman.” (Italics ours.) So was Nelson in this case, as respects tbe operation of tbe truck. But, just as in that case, tbe injury “did no't occur from anything done in tbe performance of such duty,” so it may or may • not be true in this case, tbe question being dependent upon a proper interpretation of tbe facts. It is just as essential in this case that the act of Nelson, in- commanding plaintiff to jump off the truck, “must have been done in tbe course of the employment of the servant and for the purpose of forwarding tbe business of the master,” as it was necessary in the case cited that “the act itself of discharging tbe hot water must have been” so done. When the facts are undisputed, and but one reasonable inference can be drawn from same, the question should be determined as one of law, as was done in International & G. N. Ry. Co. v. Cooper, supra. If not, then “tbe question of authority or not is one of fact to be determined by tbe jury like any other issue, and not a matter of law to be decided by the court.” Galveston H. & S. A. Ry. Co. v. Zantzinger, 93 Tex. 64, 53 S. W. 379, 381, 47 L. R. A. 282, 77 Am. St. Rep. 829.

In this connection it is to be observed that no such issue was submitted to the jury in this ease. Unless the fact was established by uncontroverted evidence as a matter of law that Nelson, in commanding the plaintiff to jump off, did so in discharge of tbe duties of his employment, then all other issues in tbe case were immaterial. Were it necessary for us to determine whether, for this reason, tbe verdict may not be insufficient to support the judgment, a very difficult question in tbe present state of tbe authorities would be presented.

But, passing this over, let us examine tbe evidence to see if an issue was presented which should have been submitted to tbe jury. It is not arguable, we think, that as a matter of law tbe employee, in giving the command to jump off tbe truck, was acting for bis employer. Plaintiff testified that tbe big Mack truck with a Magnolia sign on it, equipped with an oil wench like all oil trucks, loaded with machinery, was in control of the truck driver at tbe wheel; that, when near latan, Nelson told him nobody was “allowed to ride on tbe truck; to get on around him so bis boss would not see anybody riding on the truck; that he would lose bis job.” That when he “got on the running board be (Nelson) told me to jump off, and I jumped off because be told me to.” As to bow plaintiff came to be on the truck, be testified: “I hollered at him and kinda motioned to him to slow down. I was standing there hollering at him and asked him if be was going down tbe road. He said be was going about twenty miles to a Magnolia camp and would help me out; (italics ours) I did appreciate that.” After plaintiff had ridden from Big Spring to latan, tbe truck driver said “I would have to get off because be was not allowed to haul anybody and that he would get caught. I did not want him to lose his job and I was perfectly willing to get off. * * * He did help me, yes, and I wxls perfectly willing to help him. ⅜ ⅜ ⅜ It did not make any difference to me where I got off. No, I would have gotten off at one point as quiets, as another. Yes, he said, ‘Jump off, this is as far as I am going.’ (Italics ours.) That is what he said, the very words.”

Plaintiff’s own testimony, we think, conclusively shows that Nelson, in commanding him to jump off, did so in pursuance of his agreement to transport the plaintiff “down the road about twenty miles,” and, if not solely in pursuance of such purpose, then to prevent his employer from learning that, contrary to instructions, he had permitted plaintiff to ride upon the truck. Nelson had, for plaintiff’s benefit, committed an offense against the defendant in permitting the plaintiff to ride. He had thereby violated the instructions of his employer. This was known to the plaintiff at least when he was commanded to jump off. The command was given as the culminating act in carrying out the joint purpose of Nelson and plaintiff to make use of defendant’s truck in conveying plaintiff to latan, or if not that purpose alone, then in addition thereto, for the purpose of preventing the defendant from learning of Nel-sonis violation of the rule against carrying passengers. That the latter would not be an act in the discharge of the master’s business is well illustrated in Grahn v. International & G. N. Ry. Co., 100 Tex. 27, 93 S. W. 104, 105, 5 L. R. A. (N. S.) 1025, 123 Am. St. Rep. 767, wherein, of an alleged wrongful ejection of one from a train whereon he had procured an employee, without authority, to let him ride, the court said: “His motive in driving plaintiff off the train while in motion might have been, not to serve his master, [italics ours] but to cover up his offense against his master.” The last case is authority for the proposition that “if there is any doubt as to that, the doubt must be resolved against the wrongdoer.” This would naturally result from the fact that plaintiff has the burden of pleading and proving that an alleged negligent act is within the scope of the employee’s authority.

We are forced to the conclusion, however, that either or both of the purposes of the said Nelson in commanding plaintiff to jump off the truck, as shown by plaintiff’s own evidence, was entirely outside of his employment with the defendant. As to that question, the evidence raised no issue for the jury. The trial court should, therefore, have granted appellant’s request for a peremptory instruction in its favor.

We are also unable to see if Nelson, the truck driver, should have foreseen an injury to plaintiff as the natural and probable consequence of his jumping off the truck, why the plaintiff should not also have foreseen the same consequence. There is no evidence that the plaintiff, in jumping off, was acting under any character of coercion or fright produced from the command. So far as we can see, he was in just as good, if not a better, position than the driver to judge whether it was safe to jump. He didn’t even request that the truck be further slowed down. If, in view of the speed of the truck at the time, it was negligence on the part of Nelson to command the plaintiff to jump off, we think it equally certain that it was negligence for the plaintiff to jump off.

It is the contention of appellee that contributory negligence was no defense, since the jury found that the command of Nelson to plaintiff to jump off the truck was. willful negligence. Treating “wilful negligence” as synonymous with gross negligence, which the definition, given by the court and not complained of, shows to be the sense in which the words were used, there was an entire absence of any testimony to sustain such a finding. Sufficient facts have already been recited, borne out by plaintiff’s own testimony, to negative any inference of willful or wanton conduct, or of gross negligence.

Por the reasons discussed, it is our opinion that the 'judgment of the trial court should be reversed, and, since it appears that the case was fully developed and an instructed verdict should have been- given, it is our opinion that judgment should be here rendered for the defendant, which is accordingly so ordered.  