122 S.W. 572 | Tex. App. | 1909
This is a suit instituted by W. J. Alexander, appellant, against the railway company, appellee, to recover damages for injury to his wife caused by the railway company's agents in going upon his premises in the night-time while he was absent, and in the discharge of their duty, and causing her fright and humiliation.
Defendant answered by general denial, and specially, that the acts of its servants in going upon plaintiff's premises were not in performance of any duty they owed defendant, but were beyond the scope of their authority.
A trial was had before a jury, and upon the conclusion of the evidence the court gave a peremptory instruction for the defendant, and thereupon verdict and judgment was rendered accordingly, from which this appeal is prosecuted.
The evidence tends to show that Alexander had been accused of taking property from the railway company. That O. K. Wheeler, the company's special agent and detective, whose duty it was to investigate and look up the evidence relative to said charge, procured C. G. Denman, the company's station agent at Hillsboro, and Roy Scarbrough, an employe under Denman, to assist him, and the three went to the residence of said Alexander in the city of Hillsboro at night, about eleven or twelve o'clock, to secure a piece of lumber it was charged Alexander had appropriated, as evidence to sustain said charge. Alexander was not at home at the time, which was known to said parties, but they knew Mrs. Alexander was at home. Said parties went into the yard and near the window of the room in which plaintiff's wife was at the time, and there was a street light shining across the yard which rendered it easy for plaintiff's wife to see the said parties.
Plaintiff's wife testified as follows: "I am acquainted with O. K. Wheeler. I understand that he is detective with the railway company of the defendant. I remember the occasion when some men, about the first day of May this year, at night, came into my yard one night. I remember the circumstances of their coming there. O. K. Wheeler called at my house a few days prior to that time, and then I gave him a statement, and in the conversation he drifted into chickens, and was telling much about Mr. McDonald's chickens, and he went out and called me and asked me if I would mind to show him the chickens. I told him I did not mind it. I did not think at the time he wanted me to show him chickens. He seemed apparently to be looking at lumber piled in the yard. That was in the daytime. He saw all of the piles of lumber that were there. He did not at that time mention the lumber at all. I told him that day that my husband was not at home. I did not say anything to him as to how long I expected my husband to be away from home. That was about a week before the men came there that night. I guess Mr. Wheeler was out in the yard about five or ten minutes when he came there around through my premises. He was in the house I guess thirty minutes or more. He did not say anything to me about the lumber on that occasion. About *410 a week after that somebody came to my house about midnight. It was Mr. Wheeler, C. G. Denman and Scarbrough. I mean O. K. Wheeler, the detective of the company, and Denman, the local agent of the defendant, and Mr. Scarbrough, who was in the employ of the defendant at that time. That was about twelve o'clock at night that they came there. When I first saw them on my premises they were crossing to the south side. I did not recognize them when I first saw them. I was lying on the bed. I got up to the window, thinking I would get my pistol, and when I got to the window I recognized Mr. Wheeler first, and Mr. Scarbrough and Mr. Denman. The light shone across the yard, and just as they passed I recognized them, and that is when I got so frightened. I fainted. I don't know how long I was in that condition. Nobody was with me but Mr. Gibson and my little son, who was in the next room. No one at all was in the room with me. I don't know how long I remained in that condition, but it was day before I could remember anything, and as soon as I could I got up and went out to see. All three of them were in my yard. I became so frightened. I did not know what they were up to. I heard Mr. Alexander speak that they were trying to get some evidence against him, and the thoughts of it frightened me. It seems like my heart gave down on me and I fell and fainted away, and I remained in that condition I don't know how long. I have never seen a well day since that time. At times I have been able, and have tried to get out, and walked out several times. Dr. Buie advised me to walk up to his office several times. I went to Waco and stayed a while, and rode out several times while there, and I walked out every chance that I felt like going. I have been to Hubbard City and to Sulphur, Oklahoma, but the spells continue to come on me and I grow weaker all the time. My nerves draw very badly. It seems like every nerve in my body draws, and finally my heart becomes weak and I feel it failing out, and I become perfectly unconscious. I have since that time suffered with the drawing of my nerves. They just draw; every nerve in my body seems to draw at times. The fact that I saw these men there at that particular hour of the night, and the fact that I heard what they had charged my husband with, had the effect on me mentally to produce a very disagreeable feeling of mind. No one would know what it was unless they would pass through it. Since that time I have not been able to perform my household duties. I did all my work except my washing up to that time."
Said parties went upon said premises without the consent of plaintiff or his wife, nor were they possessed of any legal process authorizing such invasion.
Such being the evidence, was it error in the court to instruct a verdict? We think so. On the proposition of appellee that said parties were not acting within the scope of their authority, we think the issue was raised, and should have been submitted to the jury. The evidence shows a trespass on the part of said parties, and there is no evidence showing the company authorized the commission of a trespass, but corporations are responsible for damages resulting from torts committed by agents while in the performance of a duty for which they have been employed. It should have been left to the jury to determine *411 whether or not the said parties were acting within the line of their duty in hunting up evidence to sustain the charge against Alexander.
The other proposition made by appellee is, in effect, that the injury, if any, was not the result of fright from fear of bodily injury, but from humiliation at the fact that the parties were in the premises searching for evidence to sustain the charge of theft against her husband. Our courts have held that an action will lie for bodily injury resulting from fright caused by the wrongful act of another. (Hill v. Kimball,
It is the province of the jury to determine all questions of fact, and unless the evidence is so conclusively one way that there is no room for reasonable minds to differ as to the conclusion to be reached, the trial judge should not direct a verdict.
For the error in directing a verdict, the judgment is reversed and cause remanded for a new trial.
Reversed and remanded.