
    SMITH BROS., Inc., v. WILLIAMS.
    (No. 3380.)
    Court of Civil Appeals of Texas. Texarkana.
    April 29, 1927.
    Rehearing Denied May 5, 1927.
    Master and servant <§=>302(2) — Employer held liable for injury to boy thrown from truck speeding in founding curve, though driver was unauthorized to carry passengers.
    Although employer was chartered as a building contractor and never engaged in business of transporting persons in its trucks, nor authorized its drivers to do so, it was liable for negligence of its driver in rounding curb at such speed that boy of immature years, permitted by driver to ride on truck, was thrown out and injured.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Calvit Herndon Williams, by next friend, against Smith Bros., Inc. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellant, Smith Bros., was a corporation engaged in paving work at River Oaks Country Club near Houston. Frank E. Lee was its “concrete foreman,” and Leonard Pre-meaux was in its service as a motortruck driver. September 25, 1924, Premeaux, returning in one of appellant’s motortrucks to the country club from Houston, where he had been sent by Lee to get ice, permitted appellee, Calvit Herndon Williams, then about 14 years of age, and his two companions, Farrell Shaw, about the same age, and Harvey Burkhalter, about 11 years of age, to get upon the motortruck he was driving and ride with him toward said country club. Shaw and Burkhalter sat with Pre-meaux on. the driver’s seat on the truck, and appellee sat on the side of the truck, back of said seat. When the truck, moving on Nebraska street, reached a curve on said street where it crossed Ridgewood street, appellee fell to the ground, and a motortruck owned by one Davis and driven by one Brazee, moving in a direction opposite to that the truck appellee fell from was moving, ran over and injured him. This suit was commenced and prosecuted by appellee’s father, W. H. Williams, on his own and appellee’s behalf, against appellant, on the theory that its employee, Premeaux, was guilty of negligence in ways specified which proximately caused appellee to fall from the truck in which he was riding. On special issues submitted to them the jury found that the position in which appellee was riding in the truck was a dangerous one, but that he did not know and appreciate the fact, and should not have known and appreciated it, “considering his age and discretion,” and found that Pre-meaux was guilty of negligence which was a proximate cause of the injury- to appellee (1) in permitting him to ride upon the truck; (2) in operating the truck “at a high rate of speed” and “in a reckless manner,” considering the surrounding circumstances; (3) in failing to slow down the speed of the truck as it approached the cúrve in Nebraska street and the truck Brazee was driving; and (4) in causing wheels of the truck to go into a ditch and strike a bridge with such force as to cause appellee to be thrown to the ground. The jury found, further, that ap-pellee was not guilty of contributory negligence in any of the respects charged against him by appellant. And they found, further, that .$2,500 would compensate him for the injury he suffered. W. H. Williams was denied a recovery of anything, but the judgment was in appellee’s favor for the amount found by the jury.
    Vinson, Elkins, Sweeton & Weems, O. M. Hightower, and W. S. Jacobs, Jr., all of Houston, for appellant.
    E. T. Chew, of Houston, for appellee.
   WILLSON, O. J.

(after stating the facts as above). It appeáred from the charter granted by the state to appellant that the purposes for which it was incorporated were “to contract for the erection, construction or repair of any building, structure or improvement, public or private, and erect, construct or repair the same, or any part thereof, and to acquire, own and prepare for use any material for said purposes, together with the right to do such other and further things as are reasonably necessary and incident to the conduct of the aforesaid authorized business,” and it appeared from other evidence heard at the trial that appellant never engaged nor undertook to engage in the business of transporting persons in trucks it owned and operated, and never authorized Premeaux or any of its motortruck drivers to carry appellee or any one else on trucks he or they drove for it. Therefore we agree with appellant that Premeaux acted outside the scope of his authority as a driver of its motortrucks, when he permitted appellee to ride upon the one he was driving on the occasion of the accident. And but for the fact, as found by the jury, that appellee, because of immature age and lack of discretion, did not know and appreciate the danger he incurred in riding on the truck as he did, we would agree with appellant in its further contention that it was not liable to appellee as determined by the judgment. That that finding was warranted by evidence before the jury is not specifically questioned by appellant. We think the effect of the finding was to bring the case within the rule recognized in Cook v. Navigation Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52, Railway Co. v. Rodgers, 89 Tex. 675, 36 S. W. 243, and other cases cited by appellee, and to make Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1040, 27 Am. St. Rep. 902, Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517, Main Street Garage v. Eganhouse Optical Co. (Tex. Civ. App.) 223 S. W. 316, and other Texas cases cited by appellant, inapplicable.

In the Rodgers Case referred to, employees of the railway company permitted the plaintiff, a boy between 12 and 13 years of age, to ride on a hand car they were operating on the railway company’s tracks. As a result of negligence of said employees, it was claimed, the boy was thrown upon the track and run over by the car. The court held that if it was dangerous for the boy to ride upon the car, and if the boy by reason of his age and want of intelligence was not capable of appreciating the danger, and the employees of the railway company invited or permitted him to get upon the car, the railway company was liable for the injury to him, “although (quoting) its employees may have been forbidden to permit any one to ride upon said car.” We think this case was not materially different from that one. Riding on a hand car was not more dangerous than riding as ap-pellee did upon the motortruck.

The facts in Cook v. Navigation Co. were much like they were in the Rodgers Case and in this case. A girl between 13 and 14 years of age, on the tugboat at the instance of employees without authority to invite her there, fell therefrom and was drowned. The court said the act of inviting the girl and her little brother on board the boat “was not within the scope of the authority of the company’s servants, and if the right of action depended upon the invitation the company should not be held liable.” “But we think,” the court •added, “it was the duty of the company not to permit them on board if their presence there was dangerous. When the company left the management of the boat to its servants-the duty devolved upon them, and it cannot be permitted to say 'that their action in allowing the children on the boat was contrary to orders, and that it was not liable.” •In another part of the opinion the court said:

“Although the defendant company may have owed the deceased no duty as a passenger, it does not follow that they are not responsible for her death. Every person using dangerous machinery is under obligation to operate it in a careful manner. He may owe no duty to one who has attained the years of discretion; and who voluntarily comes in contact with it, to guard him against dangers that are apparent. But as to children the rule is different. Evansich v. Railway, 57 Tex. 123; Evansich v. Railway, Id. [57 Tex.] 126. .Not being capable of exercising that degree of circumspection in the face of danger that adults are expected to use, a higher degree of care must be exercised towards them. If it be negligent to leave dangerous machinery in a place where children are likely to tamper with it, without taking precautions to prevent them from injuring themselves, we think it equally negligent to permit them aboard a tugboat, where there is danger of them being drowned, without taking adequate precautions to avoid all accidents.”

In its brief appellant cites cases decided in other states which seem to support its contention, but Cook v. Navigation Co. and Railway Co. v. Rodgers, referred to above, were decided by the Supreme Court of this state, have never been overruled, and, as we construe them, authorized the judgment in appellee’s favor. Therefore it is affirmed. 
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     