Opinion · Txlaw Texas
ST. LOUIS S.W. RY CO. v. HUDSON, 9 S.W.2d 511 (Tex.Civ.App.-Texarkana 1928)
ST. LOUIS Sw. RY. CO. OF Tex. v. HUDSON et ux.[fn*], 9 S.W.2d 511 (Court of Civil Appeals of Texas, Texarkana. 1928)
- Type
- Opinion
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- Txlaw Texas
- Jurisdiction
- Txlaw
- Date
- 1928-08-02
- Topic
- general
ST. LOUIS S.W. RY CO. v. HUDSON, 9 S.W.2d 511 (Tex.Civ.App.-Texarkana 1928) ST. LOUIS SOUTHWESTERN RY.
Citator
UpLaw has not yet analyzed ST. LOUIS S.W. RY CO. v. HUDSON, 9 S.W.2d 511 (Tex.Civ.App.-Texarkana 1928). The absence of a flag is not a finding that it is good law.
ST. LOUIS S.W. RY CO. v. HUDSON,9 S.W.2d 511(Tex.Civ.App.-Texarkana 1928)
ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUDSON et ux.fn*
No. 3573.
Court of Civil Appeals of Texas, Texarkana.
August 2, 1928.
Rehearing Denied August 3, 1928.
Action by W. H. and Mrs. Rosa Hudson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.
October 7, 1922, appellees' son, Clayton Hudson, was shot and killed by L. W. Pearce, a Texas ranger engaged in guarding employees and property of appellant's during what was commonly known as the "railway shopmen's strike." On the theory that Pearce was acting as appellant's employee at the time, and that appellant therefore was liable to them in damages for the death of their son, appellees sued and recovered judgment against appellant. On an appeal prosecuted by appellant, the judgment was reversed by this court on the ground that it appeared Pearce was acting as a public officer and not as appellant's employee at the time he killed appellees' son, and judgment was rendered here that appellees take nothing by their suit against appellant. See286 S.W. 766. The Supreme Court having granted appellees' application for a writ of error and referred the cause to the Commission of Appeals, said Commission reversed the judgment of this court (see 293 S.W. 811 and 295 S.W. 577), and the cause was remanded to the court below for a new trial. Appellees alleged in the petition on which the last trial was had that appellant employed Pearce and other rangers to protect its property and to prevent strikers from stationing and maintaining "pickets" in the vicinity of its shop grounds, from interfering with its employees, and from dissuading persons who thought of doing so from working for it; that Clayton Hudson was stationed in a public street and acting within his rights as a picket at the time he was killed; that in killing the said Clayton Hudson, Pearce acted "wrongfully and negligently within the actual and the apparent scope of his employment" by appellant; that said Clayton Hudson's death "was directly and proximately caused" by said wrongful act and negligence of appellant's servant Pearce, and "by his unfitness for the service in which he was employed" by appellant; that in killing said Clayton Hudson said Pearce "was not acting in any official capacity, or in the performance of any official duty, or in the execution or enforcement of any law" — and then alleged as follows:
"The said L. W. Pearce was, at the time of said killing, and had been for a long time prior thereto, a violent, dangerous, overbearing, and brutal man, who regarded lightly the taking of human life, and was likely at any time to shoot and kill or otherwise seriously injure the deceased or some other of said strikers unlawfully and wholly without justification, by reason of which disposition and characteristic he was wholly unsuited and unfit for the service in which he was employed by the defendant company, as aforesaid, and wholly unfit for the said service in which the defendant caused and permitted him to be employed at and about its premises. Besides all this, the general reputation of the said L. W. Pearce, as being a violent, brutal, and dangerous man, was and long had been exceedingly bad, at the time of said killing, throughout the city of Tyler and in the portion thereof where the defendant company's said shop grounds were located and its officers and agents operated as such, all of which qualities, characteristics, unfitness, and general reputation of said L. W. Pearce the defendant company, its officers and agents, well knew, and would have known by exercising ordinary care, at the time of and long before said killing, in ample time before it occurred to have avoided the killing of deceased by discharging said Pearce from the defendant company's service and causing him to be discharged from the said employment in which he was engaged, which the defendant company and its agents could and would have done by exercising ordinary or reasonable care before the time of said killing, but the defendant company, its officers and agents, negligently employed the said L. W. Pearce in the defendant's said service, and negligently caused and permitted him to be retained in said employment, and negligently caused and permitted him to be employed in said service, and negligently caused and permitted him to be stationed with a loaded gun upon and in the vicinity of the defendant's said shop grounds at the time when and place where the said strikers were lawfully maintaining their pickets, including the deceased, during the said strike, and where the said Pearce as such armed guard was likely at any time to encounter the deceased or other picket of the strikers, and was likely at any time to wrongfully, unlawfully, and negligently kill or seriously injure any of them, including the deceased, all of which the defendant, its officers and agents well knew, and would have known by exercising ordinary care, at the time of and long before said killing, in ample time to avoid or prevent the same by discharging said Pearce or causing him to be discharged from said service before the killing, which the defendant, its officers and agents, could and would have done by exercising ordinary care, which in all of said circumstances it was their duty to do. A direct and proximate cause of Eugene C. Hudson's death was the aforesaid unlawful, wrongful, and negligent act of said L. W. Pearce, in the defendant company's said service, in shooting the deceased as already stated. A direct and proximate cause of decedent's death was the negligence of the defendant company in employing said Pearce and in causing or permitting him to be stationed upon or near its said premises, as an armed guard, when he was a violent and dangerous man, wholly unfit for said service, and when his general reputation was that of a violent and dangerous man, and when the defendant, its officers and agents, well knew his said qualities and his said general reputation, and would have known the same byPage 513exercising ordinary care, at the time of and before said killing."
Special issues and certain instructions submitted by the court to the jury, and the jury's answers to the questions presenting the issues, are stated below:
"Question 1: Was L. W. Pearce an employee of the defendant company on the occasion and at the time Hudson was killed? In connection with question 1, I instruct you that the term `employee' as herein used means a person acting for or rendering service to another, for pay, by his or its authority, and under his or its direction or control; and, if you find from a preponderance of the evidence that L. W. Pearce, prior to and until the killing of Hudson, engaged in guarding the property and employees of the defendant company to prevent persons from entering the company's premises without its consent, and to protect the company's employees from interference, and that such services, if any, of Pearce, were for the benefit and interest of defendant, and were performed under the direction of defendant's officials and agents for compensation paid by the company, then you will answer the first question `Yes,' although you may find from the evidence that at the time of rendering such service Pearce was a ranger; but, unless you find as above stated, you will answer said question `No.' Answer: Yes.
"Question 2: Was L. W. Pearce, on the occasion and at the time he killed Clayton Hudson, acting within the scope of his employment, if any, by the defendant company? In connection with question 2, I instruct you as follows: If you find from a preponderance of the evidence that on the occasion and at the time of the killing Pearce was employed by the defendant company to guard its shop grounds from intrusion and protect its employees from interference, and that he was performing this service at that time, and that in killing Hudson he did not act from or out of said service, if any, or perpetrate a mere personal design of his own, but was furthering and promoting the interests of said defendant in the course of said employment, if any, and that the killing occurred in the course of his said service, if any, to the defendant company, and that the altercation which accompanied or resulted in the killing arose out of the performance by Pearce of his said service, if any, to the defendant company, and that the killing occurred in the course of an uninterrupted continuation of such altercation, then you will answer said question 2 `Yes;' but, unless you find as above stated, then you will answer said question `No.' Answer: Yes.
"Question 3: Was the killing of Clayton Hudson by L. W. Pearce a wrongful act? Answer: Yes.
"Question 4: Was L. W. Pearce a person unfit for the service, if any, he was employed, if he was, by the defendant to perform? Answer: Yes.
"Question 5: Would the defendant company, its officers and agents, by exercising ordinary care, have ascertained before the killing of Hudson that Pearce was an unfit person (if you find he was) for the service, if any, in which he was employed, if he was, by the defendant company at the time of the killing? Answer: Yes.
"Question 6: Was such unfitness, if any you find in answering question 4, of L. W. Pearce a proximate cause of the death of Clayton Hudson? Answer: Yes.
"Question 7: Was the defendant company, its agents and servants, guilty of negligence in permitting L. W. Pearce to be and remain in its service (if he was) till the time of the killing? Answer: Yes.
"Question 8: Was such negligence of defendant (if any you find in answering question 7) a proximate cause of the death of Clayton Hudson? Answer: Yes.
"Question 9: What amount of money, if paid now, will fairly and reasonably compensate the plaintiff Mrs. Rosa Hudson for the damages, if any, which she sustained by reason of the death of Clayton Hudson? Answer: $15,000.
"Question 10: What amount of money, if paid now, will fairly and reasonably compensate the plaintiff W. H. Hudson for the damages, if any, which he sustained by reason of the death of Clayton Hudson? Answer: $2,500."
On the findings just set out above, the court, on November 12, 1927, rendered judgment in appellee Rosa Hudson's favor against appellant for $15,000, and in appellee W. H. Hudson's favor for $2,500. The judgment, so far as it was in favor of W. H. Hudson, was afterward so modified as to adjudge him a recovery of only $1,000 instead of $2,500. The sufficiency of the evidence to support the findings of the jury, other than those as to the amount of the damages appellees were entitled to recover, is not in any way questioned by appellant on this appeal.
Cone Johnson and Edwards Hughes, all of Tyler, for appellees.
It has been repeatedly held that the provision in the statute applicable (to the first-mentioned ground of the objection), that "in submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues" (article 2189, R.S. 1925), renders a general charge improper when a case is submitted on special issues. Appellant cites a number of cases so holding, among them being Ry. Co. v. Harrington (Tex.Com.App.)235 S.W. 188. In that case it appeared the deceased was killed at a crossing as a result of a collision between an automobile he was riding in and a locomotive. The vice in the refusedPage 514requested instructions (as construed by the Commission of Appeals) was that (had they been given) they would have directed the jury (in effect) on conditions stated to find that the deceased was guilty of contributory negligence, which finding would have required the rendition of a judgment in the defendant's favor. That being true, the Commission of Appeals held the instructions to be general ones, and that the trial court therefore did not err when he refused to give same to the jury.
In the instant case the instructions in question required the jury, on conditions stated, to find that Pearce was not appellant's employee acting within the scope of his employment at the time he killed Clayton Hudson. Such findings would have required the rendition of a judgment in appellant's favor. It is apparent, therefore, that, by the test applied in the Harrington Case, the instructions complained of in this one were general ones, and it was error to give them to the jury.
In Oil Co. v. McLean, 280 S.W. 557, another case cited by appellant, the Commission of Appeals held that, unless the contrary clearly appeared, injury from the giving of a general charge would be presumed where a case was submitted on special issues. It would seem, therefore, that the judgment in the instant case ought to be reversed unless the error in giving the instructions should be treated as harmless, or, if it should not be so treated, unless appellant is estopped from claiming anything on account thereof.
With the holdings of the Commission of Appeals on the former appeal in mind, we are inclined to think appellees' contention that the giving of the instructions, if error, should be treated as harmless, because it conclusively appeared from the evidence that Pearce was appellant's employee and acted within the scope of his employment when he killed Clayton Hudson, should be sustained.
The contention that appellant is estopped from claiming a right to have the judgment reversed because of the error (if it was one) in giving the instructions, is based on the fact (it is asserted) that appellant itself requested the court to give instructions subject to objection on the ground it urges against those it complains of, and in that way invited the error of which it complains. As supporting their contention, appellees refer to special charges requested by appellant, numbered 3, 4, 5, 6, 7, and 8 in the record. Nos. 3, 4, 5, and 6, had they been given, would have instructed the jury on conditions specified to answer question 1 submitted to the jury "No," and Nos. 7 and 8, had they been given, would have required the jury on conditions specified to answer question 2 "No." Had either of those questions been so answered, appellant would have been entitled to the rendition of a judgment in its favor. So, it seems, by the test applied in the Harrington Case, the refused special charges, like the instructions appellant complains of, were subject to objection on the ground that they were "general" and that appellant therefore is in a position where it has no right on the ground specified to complain of the instructions given by the court. Texas Mexican Ry. Co. v. Canales (Tex.Civ.App.)299 S.W. 668; Ran v. Bank (Tex.Civ.App.)272 S.W. 510.
We do not think the instructions were subject to objection on the other ground urged to them, to wit, that they contained erroneous statements of the law in particulars specified.
Appellant specially excepted to the part of appellees' petition set out in the statement above, "for the reason," it was stated:
"That the facts so alleged are irrelevant and immaterial, in that the petition shows that decedent was not in the service of defendant at the time he was killed and was not a fellow servant of the said Pearce, and defendant therefore could not be guilty of negligence as to plaintiffs, or their said son, in failing to use ordinary care in the selection and retention of the said Pearce in its said service,"
— and complains here because the exception was overruled. We do not think the assignment presenting the contention should be sustained. It was provided in the statute (chapter 109 of the General Laws 1921, p. 212) in force at the time of the homicide that —
"When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of the proprietor, owner, charterer or hirer of any industrial or public utility plant, or any railroad, street railway, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers or by the unfitness, wrongful act, neglect, carelessness, unskillfulness, or default of his, their, or its servants or agents, such proprietor, owner, charterer, or hirer shall be liable in damages for the injuries causing such death."
It will be noted that by the terms of the statute the liability of the owner of a railroad is not alone for damages for the death of one of its servants caused by the "unfitness, wrongful act, neglect, carelessness, unskillfulness or default" of another one of its servants or agents, but is for the death of any person so caused, without respect to whether such person is its servant or employee or not. Appellant cites Barrow v. Barclay (Tex.Civ.App.)269 S.W. 235, as a case supporting its contention, but we think it does not do so. The holding in that case was merely that, "under the issues raised by the pleadings of both parties and the evidence adduced by them, it would have been error" to submit an issue as to whether the sheriff was negligent in appointing thePage 515deputy who shot the deceased. Such being the holding of the Court of Civil Appeals in that case, we do not think it can be said to have been in conflict with the holding of the Commission of Appeals in Ry. Co. v. Carter, 261 S.W. 135, where a contention similar to the one made in this case, and arising on a like state of facts, was determined by the Commission of Appeals. "Plaintiffs in error," said the court in the Carter Case, "take the position that: `When no special relationship exists between the company and the person killed, a railway company owning and operating a railroad is not liable for the willful and intentional killing of a person by the railway company's servant.' We cannot agree with this contention, for the reason that the jury found that the servant was an unfit person to perform his duties, was continuing in his duties at the time of the shooting, and that his unfitness was the proximate cause of the death of Carter, and that plaintiffs in error by the use of ordinary care could have, prior to Carter's death, ascertained that the flagman was an unfit servant, which brings the case clearly within the provisions of article 4694, Revised Civil Statutes." It would serve no useful purpose for us to stop to inquire whether the holding in the Carter Case was correct or not, for, if we concluded it was not, we would feel that we were nevertheless bound to follow it.
It follows from the overruling of the assignment complaining of the action of the court below in refusing to sustain the exception questioning the sufficiency of the part of appellees' petition specified, that we think the assignment complaining of the action of said court in admitting, over appellant's objection, evidence that the reputation of Pearce "for peace and quietude" was bad also should be overruled; for the only ground of the objection to the evidence was that it "was irrelevant and immaterial, for the reason that deceased was not in the service of appellant and was not a fellow servant of Pearce when he was killed."
And from the holding that appellees were entitled to rely upon "unfitness" of Pearce as a ground of the recovery they sought, we think it follows that the court below did not err when, over appellant's objection on grounds specified, he admitted the evidence of specific declarations, acts, and conduct on Pearce's part tending to establish such unfitness, referred to in the sixth proposition in appellant's brief that it was error "for the court to permit appellees' attorneys to introduce evidence as to Pearce's mistreatment of other persons and his declarations made at other times than when he killed Hudson, for the reason that they were not a part of the res gestæ." We think the evidence was admissible under the doctrine "sustained," said Mr. Labatt (3 Master and Servant, p. 2885, where many cases are cited), "by a considerable array of authorities" and recognized by the courts of this state. Cunningham v. Ry. Co.,88 Tex. 534,31 S.W. 629; Ry. Co. v. Branch (Tex.Civ.App.)56 S.W. 542; Ry. Co. v. Patton (Tex.Sup.) 9 S.W. 175.
It is insisted the verdict and judgment based thereon are excessive, but there is nothing in the record indicating that in determining the amounts of their verdict the jury were influenced by anything they did not have a right to consider. Baker v. Harmon (Tex.Civ.App.)254 S.W. 517. That the careful and able judge who tried the case gave proper attention to the contention when it was presented to him in the motion for a new trial is shown by the fact that the motion was overruled only after appellees had filed a remittitur of $1,500 of the amount found by the jury in favor of appellee W. H. Hudson. That judge was in a better position than we are in to determine the question presented; and we are not willing, on the record sent to this court, to substitute our judgment for his and the jury's by holding the judgment as finally rendered to be excessive.
The judgment is affirmed.Page 743
- Writ of error granted. ↩