145 S.W. 902 | Tex. | 1912
Mrs. Cora Camp instituted suit in the district court of Hunt county against the Commerce Cotton Oil Company, a corporation, seeking to recover damages for the death of her minor son, caused by the negligence of the Oil Company. She recovered a judgment, which was affirmed by the Court of Civil Appeals for the Fifth District. We copy the conclusions of fact found by the Court of Civil Appeals;
“Oscar Camp, while, employed by appellant to shovel hulls in its hull house, met his death by being smothered in the hulls on the morning of December 15, 1906. He was last seen alive between 3 and 4 o’clock Saturday morning in appellant’s engine room, where he had gone to get a drink of water. The hull house is 100 feet long and 60 feet wide, and has two rows of posts its entire length; the posts being 20 feet apart. On top of essh row is a girder, running from one end of the building to the other, dividing the house into three sections. The hulls are conveyed from the mill to the hull house by a conveyor, running the entire length of the building; and every 20 feet there is a chute or spout through which the hulls are discharged. The 'girders are about 6 feet from the roof, and these chutes are a little above thef level of the girders. The roof is 26 feet high at its highest point and slopes down to the eaves, which are 16 feet high. The hull house, speaking generally, stood north and south, and had large double doors at its front or south end, near the oil mill, through which people backed in their wagons in hauling away hulls. The first chute was 20 feet from the doors and the hulls had worked out until they came outside 10 feet on an incline. The house was practically full of hulls at the time of the death of Oscar Camp. During the day, people would haul away hulls; but during the night the house would again be filled. The work of shoveling hulls was dangerous. If a person in shoveling hulls got out of the beaten path, he would sink; and, again, If the banks were perpendicular, or nearly so, the hulls were liable to slough off in large piles or chunks. Oscar Camp was not warned of, and did not know or appreciate, the danger at the time of his employment, or at the time of his death. The appellee is the only living parent of Oscar Camp, his father having died prior to his employment by appellant; and, while appellee knew that her son Oscar was in the appellant’s employ, she did not know the character of his employment, or that he was employed in a dangerous occupation, or employed to shovel hulls._ The appellant was negligent in employing Oscar Camp, a minor 15 years of age, and putting him at work at a dangerous employment, without warning him of the danger; and his death was the proximate result of such negligence. Neither Oscar Camp nor appellee were guilty of contributory negligence. The hull house was lighted by two incandescent lights which went out as soon as the machinery stopped running.
“On the night of the death of Oscar Camp, the spout nearest the front of the building was being used. He was found in the forenoon of Sunday, buried in the hulls between the first chute and the front of the building. The evidence was sufficient to justify a finding; and we find that he was buried by a quantity of hulls breaking or sloughing off, by which he was submerged and suffocated.”
In the last ease cited, this court held that a private corporation would be bound by the acts and the negligence of the man whom it clothed with its corporate powers, and, in accord with that case, we hold that the Oil Company will be liable in this case for the' acts and negligence of Day, its alter ego. Whatever acts of Day, done for the corporation, that would render him liable, if done for himself, will bind the company as it would bind Day, but no further.
To recover, the plaintiff was required to prove that Oscar was employed by G-. W. Day, the general manager, and the only person for whose negligence the corporation would be liable. Also she must have proved that Day negligently set Oscar to work at a dangerous employment, without informing the boy of the danger. There is not in the statement of facts any evidence that Day employed Oscar. Day testified that he did not employ the boy, and did not know that he was at work in the mill until he heard of his death; and the plaintiff swore that she did not believe that Mr. Day knew that Oscar was at work in the oil mill. There is no evidence to the contrary. Of course, if Day did not employ Oscar, and did not know he was at work, he could not have negligently set him to work at a dangerous employment. Day testified that his superintendent hired hands; but it is not proved that the superintendent hired Oscar. Perhaps Crowson was the superintendent; but he stated that he did not remember hiring the boy — in fact, there was no proof as to who hired him, or whether or not he was warned. We are not to be understood as holding that the superintendent’s act, if he did employ the boy, would bind the corporation for his negligence, if negligent. He was only an agent appointed by Day, and his negligence, if it had been proved, would not authorize a verdict against the corporation. We have discussed these questions thoroughly in Sullivan-Sanford Lumber Co. v. Cooper, 142 S. W. 1168, to which we refer.
In Hargrave v. Vaughn & Cumming, 82 Tex. 347, 18 S. W. 695, the prescription clerk of the apothecaries negligently substituted poison for the medicine named in a prescription for a child, which caused the child’s death, and the father sued the druggists for damages. Judge Stayton said: “It is evident, under the averments of the petition, that Vaughn & Cumming were not responsible for any injury to plaintiffs resulting from the death of the child; for it is clear that the statutes on which such actions are based would not render them liable to such an action for the negligence of their agent, though the agent may be liable. Hendrick v. Walton, 69 Tex. 192 [6 S. W. 749].” There is no authority in this state nor elsewhere, so far as the writer knows, to the contrary.
The right of Mrs. Camp to recover depends wholly upon the statute, which in terms confines the liability to the acts of the person sought to be charged, and the decisions exclude negligence of the agents.
To the complaint that it is a harsh law, we answer that it was enacted by the Legislature, and this court has no authority to change it. “Hard cases1 make bad law.” We cannot see that it is possible for Mrs. Camp to make the proof necessary to authorize a recovery, and it would be useless to remand this case for another trial.
Because the trial court erred in not directing the jury to return a verdict for the defendant, the judgment of the district court and that of the Court of Civil Appeals is reversed, and judgment is here rendered for the plaintiff in error.
