Texas & Pacific Railway Co. v. Hagenloh

247 S.W.2d 236, 151 Tex. 191, 1952 Tex. LEXIS 366

• Court: Texas Supreme Court
• Decided: March 5, 1952
• Docket: A-3353
• Status: Published

Opinions

Mr. Justice Smedley

delivered the opinion of the Court.

Respondent, Paul Hagenloh, filed this suit against petitioner, The Texas & Pacific Railway Company, for damage because of injuries inflicted upon him by a blow struck by C. B. Houghland. Both respondent and Houghland were employees of petitioner, respondent being a brakeman and baggageman and Houghland being a special agent.

The principal question in the case is whether Houghland, in striking respondent, was acting within the scope of his employment. The jury in answer to special issues found that when Houghland accosted respondent he did so in pursuance of one or more of his duties as agent of petitioner, the railway company; that he struck respondent without cause or provocation; that respondent did not provoke or invite the blows, and that at the time of the altercation Houghland was not off duty. Judgment was rendered in respondent’s favor against petitioner for $7400.00. Petitioner filed a motion for an instructed verdict, and after verdict a motion for judgment non obstante veredicto. The Court of Civil Appeals, after reviewing the evidence fully, reached the conclusion that a jury issue was raised and affirmed the trial court’s judgment. 241 S. W. 2d 669.

1 The first point of error in the application for the writ is that the Court of Civil Appeals erred in holding that there is evidence raising an issue whether C. B. Houghland was acting in the furtherance of his duties for petitioner at the time he struck respondent. In considering and deciding the question presented by the point, we follow the familiar rule, referred to in the opinion of the Court of Civil Appeals, that credit is to be given to all evidence favorable to respondent, every legitimate conclusion favorable to him indulged, and all adverse evidence disregarded. Wininger v. Fort Worth & D. C. Ry. Co., 105 Texas 56, 58, 143 S. W. 1150

Both respondent and Houghland testified at length about their acts and conversations prior to the time of the last encounter and about what was said and done in that encounter. There are no important conflicts except in their testimony as to what was said just before Houghland struck respondent. Houghland ceased to be an employee of petitioner more than two years before this case was tried. He was called as a witness by respondent, who insists that he was an adverse witness, and that the jury could disregard any part of his testimony even though uncontradicted. The Court of Civil Appeals sustained that contention, saying that it seemed clear that Houghland was a hostile and adverse witness, apparently basing its conclusion on the fact that Houghland was charged with making and did make an assault on respondent. In view of the disposition that in our opinion can correctly be made of the case without reference to Houghland’s testimony, it is unnecessary either to approve or disapprove the ruling of the Court of Civil Appeals that Houghland was an adverse witness. It may not be inappropriate to say here, without discussing Houghland’s testimony in detail, that if believed it would show that at the time he accosted respondent and struck him he was not on duty for petitioner, being then “off” for two days; that he had prior to that time closed the investigation Of the loss of the jewelry out of which the ill feeling between him and respondent arose; that he accosted respondent only to discuss a personal grievance which he understood respondent had against him; and that he struck respondent in resentment of a grievous personal insult spoken by respondent.

Respondent Hagenloh resided in El Paso. He worked as a brakeman on petitioner’s freight trains between El Paso and Toyah, and at times he worked as a baggage man on petitioner’s passenger trains between El Paso and Big Spring. Houghland resided in Toyah and worked for petitioner as a special agent, his territory extending from El Paso to Big Spring and south out of Pecos to Balmorhea, and from Monahans north to Loving-ton, New Mexico. Respondent’s briefs indicate that he relies upon Houghland’s testimony as to the nature and extent of his duties and authority, and Houghland’s testimony seems to be the only direct evidence of the same. He testified that it was his duty to protect all property, to investigate trespasses, personal injuries at railroad crossings, claims for damages to stock, and other claims for damages, and that when claims were made for missing baggage or other property it was his duty to take care of the claims and to undertake to find the missing property, and that in the performance of those duties he “was given pretty much of a free hand within reason”, but had to go by the rules.

The following statement of what occurred between respondent and Houghland is taken from respondent’s testimony. Respondent first became acquainted with Houghland about Christmas of 1946, when Houghland entered the baggage car and without introducing himself looked at the baggage here and there and looked through the “pigeon holes” against the wall where company mail, little packages and registered mail were carried. In January, 1947, Houghland continued the inspections and also went through respondent’s brief case which contained company material such as forms, envelopes, clips and pencils. The inspections continued until the middle of June, 1947. At some time during that period, the date not definitely shown, Houghland went through respondent’s little suitcase or overnight bag in which he kept extra clothes. Houghland told him at that time that, something had been missing when respondent’s car came into El Paso, and asked him whether he knew anything about the missing articles. Respondent answered that he did not.

In March, 1947, the owner of three pieces of baggage, picked up by respondent at Pecos and checked for California, changed her mind and requested that the baggage be taken off at El Paso. Respondent placed the baggage at the door' with other El Paso baggage and left the car for his home, being relieved of his duty as soon as the train stopped "at El Paso. About a week later at Toyah Houghland told respondent that some jewelry was missing from that baggage. He did not accuse respondent of taking the jewelry, but asked him whether he knew anything about it, since he was the only one who had handled the baggage. Respondent told Houghland that he knew nothing about it, and he testified that he did not take anything that belonged to the woman or to the railway company. After that incident Houghland contined to enter respondent’s car and inspect his baggage as well as the company’s baggage. Respondent complained to Mr. Bishop, superintendent of special agents, telling him about Houghland’s investigations and statements as to the missing jewelry.

Two or three weeks after the incident of the missing jewelry Houghland and two other men, who represented themselves as F.B.I. agents, called at respondent’s home in the early evening. Houghland said that they came in connection with “that baggage deal”, and that they would-like to go through respondent’s house. Although they had no search warrant, respondent invited them to come into the house. They did not enter the house, but asked him for his baggage reports of about the time when the property was missing. He gave them the reports except one sheet, which he had mailed to his “boss”or the “timekeeper’-’.

There were other searches by Houghland and sometime in June respondent made a report to Mr. French, assistant superintendent of .the railway company, telling him of the searches and of the visit made by Houghland and the F.B.I. agents to his home, and requesting French to have an investigation made by the railway company and the employees’ brotherhood. French promised to “check into it” and let him know. Respondent did not hear from French.

Later Houghland entered respondent’s baggage car when the train stopped at Monahans and again went through the company’s mail in the “pigeon holes” and respondent’s" brief case". Houghland then started to look into respondent’s “little personal suitcase” and had laid his hands on it, when respondent turned and grabbed it and told Houghland that he was getting tired of his looking through his personal baggage and that he could not look through it. Thereupon Houghland stepped to the car door and asked Mr. Bishop, his immediate superior who was standing outside of the door, to come into the car and told him that he was trying to go through respondent’s suitcase and respondent would not let him inspect it. Bishop thereupon told Houghland “if you have anything against Hagenloh, find out about it and settle with him after he gets off of the train, after you are through working.” Houghland pointed his finger at respondent and said: “I am going to find out; that is exactly what I am going to do.” When respondent’s train arrived at Big Sprping he “was pretty much excited” and reported the Monahans incident to Mr. Brannon, division superintendent, and begged him to have an investigation made. He got no report from Brannon. Respondent testified that he was tired of being aggravated, that he resented the fact that Houghland went through his personal belongings, and that he became angry when Houghland at Monahans looked into the “pigeon holes,” went through the brief case, and finally went into his own suitcase.

Several days after the Monahans incident, from two to five days according to respondent’s testimony, respondent completed a “run” as brakeman on a freight train from El Paso to Toyah, arriving at Toyah at 8:30 P.M. He left his brief case and lantern in the yard office and went across the street to a cafe. After eating he left the cafe and started to go back across the street and across the tracks to the depot for his bag, intending then to go to his rooming house. When he was walking up the street or road after leaving the cafe and had reached a point about forty feet north of the railroad tracks, he heard someone call him. He stopped, and Houghland came to him and said: “I want to talk to you about the baggage incident.” Respondent said: “I don’t think that this is the place to talk about it. I would like to have an investigation, which I have asked for, and probably will get.” Then in the words of respondent’s testimony the following: “He said T don’t need an investigation. I have made up my mind to find out right now, right here, right now.’ He said ‘you are a thief and you belong in the penitentiary.’ And I said — I don’t remember just the exact words, I said ‘well, how come?’ And he said ‘Judge Schmidt told me.’ And I said ‘that is a lie.’ With that, as I was talking to him, had started around and trying to walk in the same direction I had originally started, turned away from him and when I said ‘that is a lie,’ he hauled out and hit me with his right hand.”

The blow was struck on the back of respondent’s head, on a part of his ear. It staggered him but did not knock him down. He ran toward the depot pursued by Houghland, who struck him again and knocked him down as he entered the door of the depot.

J. R. Cobb, an employee of petitioner, was called as a witness by respondent. He testified that while engaged in making up a train as a brakeman he saw the two men running and followed them to the door of the depot, where he heard Houghland “cussing” respondent and saying to him “I’ll teach you to call me a liar.”

2 After careful examination of the record and the applicable authorities, and bearing in mind the rule stated at the beginning of this opinion for testing the evidence in the consideration of a motion for peremptory instruction, we are of the opinion that it is not reasonably to be inferred from Houghland’s words and conduct on the night of the assault as described in respondent’s testimony or from that testimony and any other evidence in the record, that Houghland in accosting respondent and assaulting him was acting within the scope of his employment or in pursuance of his duties or in the furtherance of petitioner’s business.

3 The case is one of assault by an employee, and the ultimate question is whether the employer should be held responsible for the consequences of the assault. It is not ordinarily within the scope of a servant’s authority to commit an assault on a third person. 57 C.J.S., p. 341, Sec. 575. And the cases in which liability has been imposed upon the master for assault by his servant are comparatively few. Usually assault is the expression of personal animosity and is not for the purpose of carrying out the master’s business.

The nature of the employment may be such as necessarily to involve at times the use of force, as where the employee’s duty is to guard the employer’s property and to protect it from trespassers, so that the act of using force may be in furtherance of the employer’s business, making him liable even when greater force is used than is necessary. International & G.N.Ry.Co. v. Anderson, 82 Texas 516, 17 S. W. 1039, cited in the opinion of the Court of Civil Appeals, sets out the rules applicable when that is the nature of the employment. A brakeman on the railway company’s freight train, in ejecting a trespasser from the train struck him and caused him to fall under the wheels. The court, stating the law of.the case, said that the master may be liable for the act of the servant even, though the master has expressly forbidden the particular act, and added: “But the act must be done within the scope of the general authority of the servant in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed.” It was held that the trial court’s charge was erroneous because its effect was to place the burden upon the railway company to prove that the brakeman who ejected the trespasser was not acting within the scope of his employment, whereas the burden Was on the plaintiff to prove the facts which would entitle him to recover, including proof that the servant who did the wrong was acting within the scope of his employment. The plain implication of the opinion is that the railway company would have been liable had such proof been made by the plaintiff, that is, if the plaintiff had proved that the brakeman had authority to eject trespassers.

In this case the evidence is that Houghland was a special agent of petitioner, whose duties were to protect petitioner’s property, investigate trespassers, claims and damages, and for missing baggage or other property and undertake to find missing property. In his acts in relation to respondent Houghland was not engaged in protecting the railway company’s property from trespass or otherwise. He was investigating for the purpose of finding property missing from baggage. His duties in that respect were hot of ■ such nature as to involve the use of force, and there is no evidence in the record tending to prove that he was authorized to use force in the performance of those duties. And so it Seems that in this respect respondent failed to prove a fact essential to recovery by him against petitioner.

However, when we look to all of the evidence bearing upon Houghland’s conduct in relation to respondent, what was done and what was said, we believe that the only reasonable conclusión is that in accosting and striking respondent Houghland was not acting in furtherance of petitioner’s business, but was carrying on an enmity that had developed between him and respondent to gratify personal animosity, and that his acts were not for his employer, but were personal to him. ' '

Over a long period Houghland had been making from time to time inspections of respondent’s baggage ear, searching for lost baggage or valuables from baggage. The inspections were so thorough and frequent as to annoy respondent and cause him to make several complaints to respersentatives of petitioner and ask for an investigation. It very clearly appears from Houghland’s acts and words as described in respondent’s testimony that after the incident of the missing jewelry Houghland believed that respondent was responsible for the loss of the jewelry. He did not accuse him of having stolen it, but asked him what he knew about it, and told him he was the only one who had handled the baggage. He continued to search respondent’s baggage car, and even opened and looked into his personal baggage and visited respondent’s home with F.B.I. agents and asked permission to search the house. On the occasion of the incident at Monahans from two to five days before the assault both Houghland and respondent became angry. Houghland laid his hands on respondent’s personal suitcase and respondent grabbed the suitcase. Respondent’s testimony shows that a personal encounter probably would have occurred then but for the presence of Bishop, who was Houghland’s superior.

Respondent and Houghland met again two to five days later at Toyah, where the assault was made. Respondent had completed his “run” from El Paso. His day’s work was done, and at about 9 o’clock P.M. he was on his way from a restaurant, where he had eaten dinner, to the depot to pick up his brief case and then go to his rooming house. The evidence, except Houghland’s testimony, does not show what Houghland was doing immediately before the encounter. The time was after normal working hours. When Houghland accosted and struck respondent they were not on petitioner’s property, but in the street or road. It may seem from Houghland’s first words that he was pursuing the investigation of the missing jewelry. He said that he wanted to talk about the baggage incident, and that he had made up his mind to find out then and there, but those words were immediately followed by “You are a thief and belong in the penitentiary,” showing that his intention was to abuse and revile respondent rather than to obtain information from him. The encounter was, or immediately became, personal, and the words were insulting and spoken in anger. The words and the assault that followed were the expression of contempt and animosity, and they were not in pursuance of the employer’s business. It is true that the assault may be traced back to Houghland’s performance of his duty to investigate the loss of the jewelry, but that investigation was the remote cause of the personal encounter, and the encounter and assault were not so closely related to the investigation in time or in place as to be a part of it.

The material facts in this case are in substance very nearly the same as those of several decisions of the Courts of Civil Appeals in which judgments of the trial courts against employers on account of assa.ult by employees were reversed and remanded, or judgments for employers affirmed, because the evidence conclusively showed that the employee in making the assault was actuated by personal animosity and that there was no close relationship between the assault and the performance of the duties of the employment. See: Home Telephone & Electric Co. v. Branton, 7 S. W. 2d 627; National Life & Accident Co. v. Ringo, 137 S. W. 2d 828, application for writ of error refused; AB.C. Stores v. Brown, 105 S. W 2d 725; Greathouse v Texas Public Utilities Corp., 217 S. W. 2d 190; Hidalgo v. Gulf, C. & S.F. Ry. Co, 60 Texas Civ App. 433, 128 S. W. 683, application for writ of error refused; Lytle v. Crescent News & Hotel Co, 27 Texas Civ. App. 530, 66 S. W. 240.

Houston Transit Co. v. Felder, 146 Texas 428, 208 S. W. 2d 880, is cited by the Court of Civil Appeals and relied upon by respondent for affirmance of the judgment in his favor. An automobile driven by Felder ran into the rear of a transit company’s bus. Goodson, the operator of the bus, left it, went to Felder’s automobile and struck Felder in the face with a money-changing Box. Goodson testified that he left his bus and went to get Felder’s name and automobile license number as it was his duty to do, that Felder refused to give his name, started reviling him, and laid his hand on him, and that he then struck Felder. Felder testified that Goodson came around to the rear of the bus, looked at the bumpers, shouted something that he did not understand, and hit him before he had said a word. The jury found that Goodson was acting within the scope of his employment when he committed the assault, but the trial court rendered judgment for the transit company notwithstanding the verdict. The Court of Civil Appeals reversed and rendered judgment for Felder on the verdict, and the Supreme Court affirmed that judgment. The Supreme Court’s judgment and opinion are based upon the evidence that Goodson, in keeping with his duties, went immediately after the collision to Felder’s automobile to get information, and that while he was thus about his master’s business and before he had finished the mission, he committed the assault. The opinion is expressed that the assault was so closely connected with the performance of Goodson’s duties as to prevent the conclusion as a matter of law that when he struck Felder he had ceased to act for the company and had begun to act for himself. And on that basis the Court distinguished the case from the Branton case and the Ringo case cited above. In the instant case the assault, as has been shown, was not thus closely connected with the service that Houghland had been performing for petitioner.

4 The rule of Galveston H. & S.A.Ry.Co. v. Currie, 100 Texas 136, 96 S.W. 1073, 10 LRA (NS) 367, also requires the reversal of the judgments of the trial court and the Court of Civil Appeals. The rule is that “when the servant turns aside, for however short a time, from the prosecution of the master’s work to engage in an affair wholly his own, he ceases to act for the master and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone.” 100 Texas 136, 142, 96 S.W. 1073, 1074. If it be assumed (which in our opinion is not a reasonable assumption) that when Houghland first accosted respondent he was continuing his search for the missing jewelry and was pursuing petitioner’s business, his act in striking respondent after respondent said “That is a lie” was a clear departure for the time from the service of petitioner to engage in an act of violence in his own behalf and in resentment of a personal insult. It is not reasonably to be inferred that the blow was struck as a part of the search for the missing jewelry. Houghland had told respondent that he was a thief and should be in the penitentiary, and added that Judge Schmidt told him. Respondent said “That is a lie,” and Houghland immediately struck respondent, pursued him, and struck him again. If it be assumed that at the beginning of the encounter Houghland was in the course of the master’s service, he stepped aside from that service in anger and in resentment, not in play as in the Currie case. By the same principle, however, his act when he stepped aside and struck respondent was his act and not that of his employer.

That Houghland struck respondent because respondent called him a liar was evidence also by the testimony of J.R. Cobb, a witness called by respondent. He was near by at the time of the assault, saw the two men running toward the depot, followed them to the door of the depot and heard Houghland say to respondent “I’ll teach you to call me a liar.” Cobb was an employee of petitioner, but he was called by respondent as a witness, and his testimony was not contradicted. Respondent did not take the position that Cobb should be considered an adverse witness under Rule 182.

The case has been fully developed. Our opinion is that the judgments of the District Court and the Court of Civil Appeals should be reversed and that judgment should be rendered here that respondent take nothing by his suit. It is so ordered.

Opinion delivered March 5, 1952.