*1 27 Tesas Civil Y-k-fh It can their lands hardly they contemplated depriving presumed circumstances, of these of this’water view without some ex- supply, that effect. must be to On taken to contrary, they pression “ditches” the ditches then in use only meant others (the having long before been main and this lateral ditch. discontinued), The is affirmed. judgment error refused.
Writ of Lytle Company. J. W. Crescent News and Hotel January
Decided by Servant—Scope Employment—Master’s 1.—Master and Servant—Assault Liability. agent ran an in charge, plaintiff, The master a lunch counter with hav- there, paid compelled by but was ing train to leave before starting taken lunch receiving change back certain due him. Some later lunch, at again eating paying lunch stand and for his plaintiff, him, agent theretofore due and the claiming that the change manded returned, plaintiff charged him already money, out, started to over counter. Plaintiff agent, went insulting epithet to the agent, and then train. not within who and shot him as he was Held, injury, not liable for the master was as the assault was agent’s employment duty. Distinguished. 2.—Case LaPrelle, ante, 496, distinguished. page Bexar. Tried below before Hon. J. L. Belden, Jr., Davis, and M. W. Samuel Ward, for appellee. Newton This isa suit FLY, instituted to have arisen from the alleged acts of an against appellee, of a certain lunch counter charge of appellee Schulenburg,
agent introduced the evidence the court by appellant After hearing Texas. for appellee. a verdict instructed stated were that D. .E. recovery petition The grounds whilst servant appellee, and that the character had negligently so vicious and as to render it dangerous of said disposition his business in Schulenburg. pursue clerk, was a railway established postal The testimony Houston, and June, sometime in Antonio between San running he went to a lunch counter Schulenburg, train reached 1900, when the Lytle Crescent News Hotel 1901.1 D. E. Rhodes for conducted eat. something *2 handed him a and him cents, Rhodes out piece pie appellant gave the 5 cents for the of which to Just as pie. appellant got pie, and he ran to catch the train train bell without his rang, getting change. Houston, The next west from and day appellant going took his din- stand, and, ner in the room the lunch after dining adjoining eating, and went to lunch stand asked Rhodes for the left, he had and Rhodes said that had his appellant gotten Several change. af- days stand, terwards went to the lunch and after appellant eating, again manded the left. forty-five awhile, had After cents talking ap- Rhodes, Rhodes with pellant charged money, and him,” told him he would “fix and started to over the counter. started out and when Appellant applied very opprobrious insulting who then epithet and, train, as he was appellant, shot him in the There was no leg. to show that testimony tending of a violent or that he disposition, except after he appellant had him theft to him charged a vile applied that al- epithet intense ways resentment in provokes this section of the country, had invited him out to It will be fight. noted that occurred difficulty several lost his money, and after had been waited on and had for his lunch. paid Rhodes at the time was not service for master, engaged and the quarrel arose over a mat- ter in which did not have the interest, least or with which it was at all connected. Rhodes was not acting in furtherance of the mas- business, or for ter’s accomplishment of object for which he was He was emplojred. insults resenting on him heaped appellant; while the remote cause of the difficulty was a matter connected with the business of it was too remote to connect appellee with it. “When a recovery is of the sought master for an injury inflicted by servant, show that the servant did the within the scope his employment.” Anderson, Railway Texas, 516; Cooper, Texas, 607.
There is no error in the judgment, and it is affirmed.
ON MOTION EOR REHEARING. It is contended by servant of appellee was acting within the employment when he shot appellant. The gen- eral and inflexible rule in all such controlling cases as the is, present as stated in Servant, Wood on Master and section that for all acts done by the servant under the direction express of the master, as well as for all acts done in the execution of his business, master’s employment, responsible, but when the act is not obedience to 27 Texas Civil [4-th orders, master,
the master’s is the act of and not the alone is therefor. the servant rule If facts in this case is clear foregoing ap held liable. not contended that can Rhodes was acting pellee orders of when he shot and he was appellant, under express he fired the He no his master’s business when shot. forwarding furnished collected the amount due for food for the master. He not therefore engaged collecting protect for no attack was made. The diffi property the mas arose from insults with which culty heaped upon Ho that mas ter could have no concern. stretch doctrine possible are liable for the torts of servants when committed within the scope ters make it a case as this. their can cover such Candiff employment *3 Atl. 601; So. Turley Railway (N. H.), Railway, Rep., (La.), Rep., the was shot a servant of by
In the last named case care for the in the freight yard. Appel- to clean and lamps employed the and was fired and wounded yard upon by was trespassing lant the there tend- it said court: “As was no evidence by the the of Saxton resulted shooting plaintiff by that to show defendants, was directed them or done their au- by by the fault of of Saxton’s work of for cleaning caring or was any part thority, he was was the and for which which employed, in the yard, lamps defendants, it be found can not in which represented sole capacity on of, willful negligent, whether complained the act of Saxton that of Saxton’s act, employment by or within defendant’s them.” ante, 496, Prelle, of by v. La decided Court p. The case of District, is cited as the Third conflict with of Appeals Civil but we are of cases are opinion herein expressed, opinion made an assault on a In that case a conductor pas- similar. not at all held, it is of au- by In such cases weight on a train. senger is,it of a a nor negligence, strictly it is not merely question thority, of the servant’s particular employ- upon depending question the absolute of a railroad ment, duty company is a question but subsists, and a breach of that duty the relation as as long its passengers not. As act of an employe caused the willful by on its part railroads, section 1638: “A carrier is on Elliott, in his work said by out of its contract and im- arising the implied to discharge bound its by shall be from injury its law, protected passengers by posed them, if insulted and harmed by willfully not be servants, and shall it well be held may this to an duty employe discharge commits care- on its the exercise of notwithstanding its do so at peril, its servants.” selecting used by that the words provocation true is doubtless no service Rhodes, but he was performing by the assault not did justify assault, his action was without he committed for when Ry. S. &A. A. P. v. Connell. .1901.] and it a sanction was done at time and place appel lee owed no whatever to and it is in duty nowise responsible from such assault. Howe any damages arising Newmarch, Mass., 49. said tort,
As in the case last cited: “And in an action of na- case, ture of an action on the the master is not if the done servant is without his for the authority, not pur- work. pose So that if the executing doing wholly own, a object for which he purpose disregarding and not act to execute does an employed, intending injury not another
liable.”
The motion for rehearing is overruled.
Overruled. of error refused. Writ Railway Company
San Antonio Aransas Pass Sam Connell.
Decided December —Negligence—Violation Employer’s Jury. Rule—Question of damages negligent personal injury In action employe against railway company, error court to refuse to instruct by plaintiff the company violation of a rule of and to *4 jury it to 'submit to determine or not such violation negligence. —Same—Negligence Per Se—Rule Stated. negligent In order that act shall be per deemed it must statutory contrary appear to a or it opposed so to the dictates prudence that it can of common be said without hesitation or doubt that no person careful would have committed it. —Damages—Remittitur. authority require The trial court has a remittitur in eases where deems personal injury in a the verdict for ease to be excessive amount. Verdict. —Same—Excessive $18,000 verdict for leg by A loss the use of a a railroad engineer, month, earning years old, excessive, $135 $150 from and 41 is held is required. $2000 remittitur of from Bexar. Tried below before Hon. J. L. Bros, and B. J.
Houston Boyle, Lewis, for appellee.
Garter Appellee instituted FLY, this suit to recover damages accruing failing send a certain train track at a water standing station flagman creek, and warn so alppellee by signals at Buckner’s as to prevent