Home Telephone &. Electric Co. v. Branton

& ELECTRIC TELEPHONE CO. v. BRANTON HOME adversely con @=302(3) Telephone 4. Master tion is decided and servant — company employee’s was not Háble for Ir of Joske familiar ease tention complaining regarding trespass, on landowner vine, Doubtless 1059. insult, where he struck resentment of and opinion by Denman other furthering employer’s was not business. as this times and complaining Where landowner had been mere announced that and the rule there telephone company’s alleged trespass by manager regarding any suspicions constitute do not surmises and of erection unauthorized of established become has telephone pole, and met and on Appellant’s disclosed books telephone company’s law in state. employee land- insulting epithet, to whom Shaffer owner in of the names each resentment of em- ployer was not was not pianos musical instru- liable for since em- and other had .sold ployee furthering its business when brought ments, and he committed assault. existed, evidence, if court some paid appellant purchasers @=308 some of telephone Master and servant 5. —That value, thing on his money, of pole other some debtedness, failed to remove plaintiff’s employee land after assault event Shaffer its' in which was no evidence of ratification of assault. ap- credits. some have been entitled ito telephone company up- Failure of do, court asks this did not telephone by plaintiff’s land, and there- payment mere based of hold a discontinue the after assault suspicions one scin- surmises employee its in resentment of support testimony positive thereof. tilla during no evidence regarding removing pole, discussion relieving for a consent "Wecannot ratification of assault. rep- obligations payment of his one from @=308 Master 6. up- —Retention promissory note to stand resented employee plaintiff assault on did not testimony. character on that by employer. constitute ratification of assault for employee Retention of after assault commit- ruled. plaintiff ted him on did not ratifi- employer. cation assault on Appeal @=742(5) Proposition 7. error — appellant challenged trial court’s action in ELECTRIC CO. &. to instruct to return verdict BRANTON. its on certain issue was not Appeals Eastland. Texas. of Civil Proposition stating “appellant challenges ac- May 25, 1928. of trial court to instruct damages return verdict 1928. favor on issue of Denied June from nuisance of” was <@=>937(4) super- Appeal error not a 1. —'Where by clerk and contained filed bond was sedeas Appeal Court, him, District Eastland .Coun- court certified ty; Been, Judge. approved Elso presume it. appear re- clerk had it did Where against Action W. A. Branton supersedeas bond, and bond fused was Telephone Company Home & Electric by clerk, in tran- and was contained plaintiff, another. From a for presume script, court must certified appeal. defendants Affirmed in reversed and rendered in @=467 Appeal error —'Where Wright, Cisco, Black, Butts & and J. R. January 4, appellate 1928, 2, 1928, filed in was objection Baird, for April of bond filed to form Bros., Eastland, Grisham late, (Courts waived too was Civil 8). Appeals Rule HICKMAN, J. Bran- filed in W. A. case was Where January 4, 1928, Appeals Civil ton recovered the court below regarding jection judgment 2, waived, against appellant Telephone Home & Electric April filed on Company to a tract of land and was too on account of the tank water unauthorized Rule 8. under Court by appellant erection thereon @=302(6) is anchor. and servant Master —Master performed as re- judgment against servant’s liable for suit recovered the same per- of insults or sentment appellant and one Paul Beardon animosities,. sonal injuries account of is not in furtherance act of servant Where result of an assault committed or for master’s of object him pellant. employed, insults per- but is for which he was Both of the defendants further- as personal court, perfected an to this master animosities ance of no brief has béen filed not liable. Digests in all KEY-NUMBER @=For cases see other REPORTER, 2d SERIES WESTERN (Tex.) SOUTH statement from the record under are arguments, considered, tion, Gordon ment in the this waived 8, governing (2) that bond was filed on to a consideration of sented. These (1) 40 ruled. lowed is apart Eastland proval page ord. There certificate Bridges therefrom.” filed transcript the a sume that he is in county, the bond. Under ini ed appear, been that this raised sureties upon trict clerk.” Callahan cussed will be Paul But when the “If The most difficult [1] The bond referred merely this case was filed 1928. This That view of the an by appellee, not, transcript. raised discussion thereof. bond The third objection, this virtue Beardon. executed this thereof. There is objection understanding by appellee. certifying to there county, inclusive. This appellee’s from the district clerk of for our certified to county. by appellee appeal fact, propositions more serious each instance final assumptions, Condiff, order on the manner propositions McLane v. clerk objection is an the clerk refused to transcript, comes too' objection is not one objections judgment, objections urged' by appellee Such facts as supersedeas decisions is before at stated in connection with App.) 241 but does not show his fact April 2, are never Courts decision. this state and is page only thing sureties who Attached brief and interlocutory demurrers it does not otherwise questions for is: questions bond. The Russell, but this order is fol- 71. It approved to the form of the urged by appellee instead of a corre- calls into this court provided in substance are: 1928. Under rule objection.is construing same, is at single court on set evidence furnish solvency appears district bond, Evans v. the bond plainly W. 286. that smacks questions dis- mixed and has been thereto we must are out conclusions; will separate any proposi- page 39, facts, is: brief are Continental reside in necessary order at Callahan is not January be noted at clerk the rec- decision practice but are to have appears Cox v. particular pole, guy wire, pages objec- propositions judg all, made of the Pigg, pre- pre and and dis- ap Mr. Alford I saw Paul far from his there have been over 20 moving When and or notice morning. attached was the local than one presence were the cause of the trouble between would the by the time he knocked me town, removed.' to sue. As I was ticed don formed, telephone exchanges. Appellant the assault committed turn struction on. usually lee and dbn. The issue is based plaining of the return a statement from the rules. the brief which tions of briefed in such manner warranted in jections which could be so up in the Star, lated statement clusions, and deductions of “This last conversation I had with him was There is consent, pole. things my premises, assignment challenging made he went to see Paul Beardon my Mr. Beardon with such duties I main, law, proper statements my This disremember give one of the conferred that I so-called son-in-law across upon crew at Details of the line Beardon; facts occasion, protesting against Bank. trespasser but one and in such manner as to render peremptorily place of road and which quotations * * they Baird for him these manager carefully Beardon got papers, considering brief and must conclude an without along promises hand we action law, there disclose that Paul Beardon equipment to the home office walking are feet came I committed. After his re- I was propositions classified are not followed requesting business, record can was on testified away promises being I don’t sue. That was that Mr. Alford well taken. the. language: is an down, were erected on and papers. from the authority classify erecting talking time, the head. thinking which were up by appellant’s from home when highway, him it over the most the sidewalk when counsel. from the record. his' think it was authority that Paul for I I had the the correctness required by and went of error com- trial court appellee by anchor which are described place Breckenridge. managers of street to him are in we would contained of the ones record, by proper I had started Paul Bear- Only knowledge erected anchor on a I at I went to to up in gave on more they proposi- that he land is as are unper- letters Rising at the appel- there- objec- Bear- about a going I no- inter- very fact me, few in to casethis n ness. ently the to make him dispose of the the assault the after to done what what I don’t on anywhere the committed negligently the ternational & is ness, ness, required, impliedly constantly Tex. Civ. in the furtherance ject when the relation ceases. Whenever very a master liable to a third for assault committed the courts clarified the vel determined Tex. hand, in The and Tex. termined on Civ. Hidalgo App.) H. & S. App.) 379, coextensive Lytle ed) ; Civ. Houston W. The [3, a servant respondeat superior applies, necessary to the go non why servant, master is assault furtherance rule arises out of the assault was subject liability for which he App. 530, 47 L. R. 4] 516, subordinate, nature he said. manager, Paul Beardon 49 S. W. Southern v. Crescent News & Hotel As to what evidence is where the act of know who of our state. These neck. The scope A. fact is for the & else at v. App. 433, 128 17 S. authorizes the servant App. 232, at all hours. Grubb v. by lunch, or expression T. C. Ry. clearly the basis of master In a occurred Gulf, with that said he would. consideration exercise the master question as that G. N. Paul Beardon of the servant’s willfully Somebody me clearly 66 S. W. 240 677; Id., W. question presented the master while that time.” immaterial. committed. Pac. told me Co. don’t it further practically undisputed that employ committed. Ry. C. & Iwas. 29 S. employment expressly had came injures v. Ry. personal Ry. Id., during said remember.of of that Texas & N. O. R. Co. v. Bell liable. On the other able S. W. Zantzinger (Tex. employed, uses more the time a damned 27 Am. liability given case should be certainly. relation and cease his servant hit Co. W. We shall therefore relation of S. F. Am. Co. his master’s busi I told him. was hit between person assaulted opinions have so duty, I don’t for the opinions by 394; Galveston, not v. may The (error refused); the master’s busi necessarily v. animosities of insults, Beardon was St. third áuthority Anderson, view St. at Ry. employment. to use áppellant (error acting Co., Kennedy, liable. question of if occasion hour when lie and noon not be force than right there Rep. (Tex. us, I hate v. remember Rep. 902; independ- day being hit a master The rule his office superior liability Co., renders the ob assault person, 1 refus or in force, asked S. W. when with dence of ratification time; hour & ELECTRIC CO. v. BRANTON per Civ. Civ. de- In 82 60 or sault? ness Com. he was him to Beardon. Beardon was in the erection Cooley on Torts: pellee’s land, nor in it the resentment instant testimony, tery. when the the remote ner While ratification the thereby uses the remote Ry. the effect constituted App.) 73 guage: a appellant International & G. N. after an assault evidence the approved same, “In order Applying In ^[5] Had the evidence Day, was not done Parsons, ratification. his (N. a ratification of the benefit. Tex. commission but few Co. state wrong approval It is Texas & interest, 29 S. In the case of the erection S.) According appellee’s own Rep. 753, case, Rep. 47, discontinue or is well settled Kirkbride supports Paul Beardon assault occurred. The assault with- ratified the act of Paul Beardon connect We find the of either Kirkbride, insisted cause of the of an removing W. 11 this test consists situations wrongdoer believed as disclosed does not constitute. own.” or been intendedto further some original must P. inquiry arises: In by S. W. such action would not amount Hudson v. necessary to Chief Justice when he Ry. officers, committed the appellee with it. Beardon as an immediate .on Case, supra, clear .and retention of an following Missouri & T. him of ;the justified Dillingham of an assault it fact of continuing 139, Co. to the facts Ry. it the furthering the difficulty, the assault. There telephone pole, telephone pole which one 3 by committed the as- ratification where Co. v. removal the decisions Gulf, Jones by the K. convincing Stayton of the master. interest wrongdoer justified' assault whatever of not him. act, J. § learning v. what McDonald, C. S. applied by it was too testimony, conclusion failure of a ratifica A. is been done jury Anthony, 15 S. W. upon ap- not that the engaged because & F. 1506,p. may thereof 634, alleged R. quotes Henry or in land. man- have own bat Civ. lan- and evi 15 be á REPORTER, 2d SOUTH WESTERN SERIES extending the doctrine struct “We think would be return a verdict apply such a too far it to case this result- of ratification Notwithstanding ing requested his one before us. the one nuisance of as may deserving fault, useful and the servant be a Fourth new encourage- worthy promotion p. 45, Page 3, appellant’s Tr.’ brief.” just in- think it ment. dividual, either We do general good, or a arbitrarily punish public policy, to so wise master brief which we is not at all the lenity otherwise de- a servant in this motion. The third penitent. perhaps serving proposition contained in the brief which discharge inno- of an lead to the voked insufficient, we held to be wrongfully employer ac- when and useful cent suspected, because his cused or “Appellant challenges the trial the action of would be certain what advance court in to re- taking trial, and instead result the risk bility ble a future turn a in its favor on of dam- pecuniary charged being lia- ages resulting from the nuisance of. responsi- not otherwise for which was “The uncontroverted that evidence shows might discharge the servant.” only giving owned easement right impounded him the use the water remanding would be served operation gin the land for the his' cotton trial. this cause for another We have con- long as, longer than, no continue should operate gin; expectancy on the of as- sidered the evidence his life years. only 21.63 solely viewpoint appellee. evidence introduced to sault damages resulting show from the nuisance com- This liability exonerates plained was the difference in the value of the prior subsequent the creation of no reason for another and there trial ground the nuisance. Fourth p. 45, for new Tr. present Appellant issue. has failed error.” any question portion to this court as to that damages against awarding ground rehearing trespass upon it on account of the land tained in the motion reads: brief, Paul Beardon has filed no holding erred that there is no and there is fundamental error statement from the record under the judgment against him. is therefore our proposition.” order of the trial court in appellee against favor of Paul Beardon be agree brief does contain a affirmed; sufficient státement the record under appellee against appellant on account of the opinion the third did affirmed; and that not hold that such statement was insufficient. appellee against appellant in favor of .proposition The fault with the third damages on account of the assault be re- not that it was not followed a written and rendered. versed statement, but that the so-called reversed and Affirmed ren- dered in rehearing Both motions for are overruled. Rehearing. On Both have filed motions for rehear- ing. Appellee’s motion refers to no new orig- authorities us on the et al. HARDING hearing, WILCOX. inal given in of sideration, We have the brief. Court of Civil of Texas. San Antonio. law raised careful 9,May original opinion. adhere Denied grounds June [7] There are two motion for we in which it is claimed <&wkey;3(6)— properly I. Boundaries refused original holding. in our erred first by running locate common corner course ground is stated motion as descriptive lines objects, distance possible original surveyor’s where to retrace holding “The court erred the third footsteps objects original from artificial

proposition proposition brief ‘not 'fact post. location argumentative, as- ” sumption, and conclusion.’ err to locate a common corner between two shares of land running descrip- course lines distance We did not use the thus attribut- objects parent tive called for in exterior line of to us. ed survey adjoining survey, and calls' in when it The statement in the motion possible original surveyor’s was steps retrace foot- ground is as follows: objects from existent artificial “Following copy prop- post location called original survey. ‘The osition: to in- erred field notes of Digests <&wkey;For see same other oases KEY-NUMBER In all

Case Details

Case Name: Home Telephone &. Electric Co. v. Branton

Court Name: Court of Appeals of Texas

Date Published: May 25, 1928

Citation: 7 S.W.2d 627

Docket Number: No. 449.

Court Abbreviation: Tex. App.