Bettie Lipscomb et al. v. Houston & Texas Central Railway Company and Wells-Fargo Express Company, 95 Tex. 5

WILLIAMS, Associate Justice. This action was brought by plaintiffs, the widow and minor children of John Lipscomb, to recover damages for the killing of John Lipscomb by persons-alleged to.have acted in such killing as the servants of the two companies. In the District Court, upon a trial before a jury, a verdict for the plaintiffs against both companies was directed, the only question left to the jury being as to the amount of the damages.

Upon appeal to the Court of Civil Appeals, it was held by that court that the express company was not shown to be one of the classes of persons made liable by the statute for a killing by its servants, and that the railroad company was not made liable for the killing in question by its servants, held to have been an intentional and not a negligent one, without allegation and proof of the unfitness of such servants; and the judgment of the District Court was reversed and the cause remanded.

This writ of error was granted upon the allegation in the application of the plaintiffs that the decision of the Court of Civil Appeals practically settled the case against them, and all the questions raised on the appeal are before this court. The evidence showed that Lipscomb was shot at the station of the •railroad company at Rice about 5 o’clock in the morning of October 10, 1899, by one Gatlin, who had been stationed in the building by one Moore, the station agent of the railroad company and the local agent, also, of the express company, to keep watch for and catch burglars.

The station had been entered several times and goods in the possession of the express company had been stolen, and Moore, for several nights before the killing of Lipscomb, had kept watch in the station until 12 or 1 o’clock and had caused Gatlin and one West to arm themselves and guard the station for the remainder of the night. His only instructions to them were to catch the burglars. Lipscomb and Davenport were the engineer and fireman, respectively, upon a freight train of the railroad company which was traveling northward through Rice to Ennis.

At a point south of Rice the boiler became so impaired as to render it impracticable to carry the train through, and, upon telegraphic orders from headquarters at Ennis, those in charge of it left the cars composing the train at one of the stations and proceeded north.ward with only the engine and caboose. When Rice was reached, the boiler had failed so that it was impossible to carry it further, and the .engine and caboose were carried past the station and backed into the switch north of it.

The engineer and fireman then went together to the station to report the condition and get orders, which, according to some of the evidence, was in the line of their duty. Finding the doors of the waiting room locked, they went to the window and made a noise which awakened Gatlin, who, with West, was asleep in the room, and he, mistaking them for burglars, fired his gun at Lipscomb, whom he saw at the window, and inflicted the wounds from which he died.

The acts and appearance of Lipscomb and Davenport immediately preceding the shooting are told in detail by the witnesses with some differences, the purpose on the one hand being to show that there was nothing to occasion Gatlin’s mistake, and on the other hand, to show that the appearance and movements of the parties were such as to reasonably justify his belief that they were burglars trying to enter the depot, and that, just before he fired, the party at the window, Lipscomb, was preparing to shoot •him.

Ho notice had been given to employes of the presence of armed guards in the station or of any dangers to be encountered in approaching it at night. Some of the evidence tends, however, to show that Rice was nót a night office, that the operator was not expected to be there at such hours as that at which Lipscomb went to it, that it was the duty of conductors to attend to such matters, and that the one in charge of this train did not go to this office because he knew the operator would not be there.

Moore was paid a salary by the railroad company for his services to it, and, as compensation for his services to the express company, received a commission upon moneys taken in for it. While he was the common agent of the two companies, he was not employed by them jointly, but his ordinary duties to one were distinct from those due to the other.

Whether or not he was authorized to employ guards for such purposes as that for which he secured the services of Gatlin and West, and, if so, whether he in fact employed them in behalf of either or both of the companies and of which one, were disputed questions in the trial. There was the testimony of one witness, of the admissibility of which we shall treat further on, which tended to show that Moore’s authority as station agent embraced that of enlisting the aid of others to guard and protect the station and other property in his charge.

Besides this, there was no evidence which went further than to show that it was. Moore’s duty and that he had the authority, himself, to take care of the property and secure it against depredation; and there was direct testimony that he and other station agents were not empowered to employ extra help for any purpose without the permission of their superiors, which was not' obtained in this instance. Gatlin had previously worked at intervals about the station in handling freight, but was not a regular employe for any purpose, nor was West.

They were not hired by Moore, but volunteered their services to aid him in catching the burglars. Hothing was said between the parties to indicate that they were employed for the one company or the other, but their services were simply accepted by Moore in the general way stated, and he assisted them in procuring arms. The evidence does not show that any of the cars used by the express company belonged to it or that it had hired or chartered any of them or that it had the exclusive actual control of any of them.

The ears used by it were in the trains run by the railroad company and were owned, carried, and controlled by the latter company, except that the express company, under contract with the railroad company, had a particular car in the train, or, if its business did not require a whole car, a portion of one, provided for its use, to be occupied by its agent with the matter carried by it. There was no pleading or evidence that this company owned or had chartered or hired any other vehicle.

Under the contract, the express company also had the right to receive and store its goods in the depot building and to have its agent transact its business there so as not to interfere with the business of the railroad company. We are of the opinion that the Court of Civil Appeals properly held that the pleading and evidence failed to show that the express company was liable, for the reason that it is not made to appear that such company conics within the provisions of the statute giving actions for injuries resulting in death; Rev. Stats., art. 3017. The first subdivision of the

article referred to gives such an action “when the death is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stage coach, or other vehicle for the conveyance of goods or passengers; or by the unfitness, negligence or carelessness of their servants or agents.” The express company is not shown to be either one of these. The most that is pleaded and proved is that it had engaged space on cars otherwise wholly controlled by the railroad company, in which goods, in charge of its agents, were transported by the latter company.

No sense of any of the words used in this subdivision of the statute would include it. It is true, other provisions of the statute declare express companies to be common carriers, but

article 3017 does not create the liability against common carriers eo nomine, but only declares it against the classes named. The second subdivision gives an action when the death is caused by the wrongful act, negligence, unskillfulness or default of another. It is held in the case of Hendrick v. Walton, 69 Texas, 192, upon full consideration, that this gives no action against the principal or master for a death caused by the act of the agent or servant; and' although it is held in Fleming v.

Texas Loan Agency, 87 Texas, 239, that under this subdivision a corporation may be made responsible for a death caused by its own act or omission, this in no way changes the rule stated in the former case. The only contention here is that the express company should be .held liable for the act of its servants. The action must stand or fall by the terms of the statute, which can not be extended to include cases omitted from its provisions. Turner v. Cross, 83 Texas, 218.

The plaintiffs have admitted in their application for writ of error, in .order to give jurisdiction to this court over a reversed and remanded cause, that they can produce no additional facts to make a case against the express company; and it is therefore the duty of this court to render final judgment in favor of that company.

The railroad company is made liable for a death caused by its own negligence or that of its servants, and the next question is as to the correctness of the holding of the Court of Civil Appeals, as matter of law, that the shooting of Lipscomb was the willful and intentional act of Gatlin, and that therefore the railroad company is not responsible for it. In discussing this question, we shall assume for the present that Gatlin was the servant of the railroad company.

The statute making such company responsible for the negligence of its servants at once brings into consideration the relation of master and servant and some part, at least, of the common law governing that relation. The master or principal is made responsible for the negligence of the servant or agent—that is, for negligence of the latter happening while they are acting in such capacity. The rule of respondeat superior, to some extent at least, is thus imported by the statute into such cases.

As it is established by the better authorities and enforced in this court, •that rule does not make the responsibility of the master depend on the question whether an injury inflicted by the servant was willful and intentional or unintentional, but upon the question whether the servant, when he did the wrong, acted in the prosecution of the master’s business and within the scope of his authority, or had stepped aside from that business and done an individual "wrong. Railway v. Cooper, 88 Texas, 610, and authorities there cited; Haehl v. Wabash, etc., Railway, 119 Mo., 325.

There is much authority, however, for the proposition that, under the common law, the master is not liable for the malicious and intentional torts of the servant, although committed while engaged in forwarding the master’s business; and it is by no means clear that the rule of respondeat superior as first stated is made to apply in its full force in actions given by our statute for injuries resulting in death.

Assuming for the purposes of this case that it does not, and that a killing by a servant which is willful and not negligent is not within the statute, it is still true that if the killing in question can be regarded as a negligent one, there is a case for the determination of the jury under the statute. The servant acts for the master in executing instructions or rendering service. If he does this without the exercise of due care, he is guilty of negligence.

The act which he does may be intentional, but if it is done without the observance of precautions necessary to a due execution of his instructions or exercise of his authority, this absence of care makes his act a negligent one. In the present case, Gatlin’s,instruction was to watch the station and catch burglars. This necessarily involved the exercise of the discrimination necessary in distinguishing burglars from innocent persons, and in making the arrest and determining the degree of force called for by the circumstances.

If, through want of proper •care, he mistook Lipscomb for a burglar and used a degree of force not justified by the situation, his act may justly be deemed a negligent exercise of the authority derived from his master. This view is sustained by both classes of authorities just referred- to. McManus v. Crickett, 1 East., 67; Croft v. Alison, 4 Barn. & Aid., 590. In the latter case, the doctrine is thus stated: “If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person and produce the accident, the master will not be liable.

But if, in order to perform his master’s orders, he strikes but injudiciously and in order to extricate himself from a difficulty, that will be negligent and careless conduct for which the master will be liable, being

an act done in pursuance of the servant’s employment.” In that case, the act of the servant in striking the horses was intentional, but, as it was “injudiciously” done, it was held that it was also a negligent performance of his duty as servant. It seems to us that this brings the case of a shooting by a servant, which was intentionally done because of mistake resulting from want of proper care in carrying out the master’s orders, within the word negligence used in the statute The act is negligent because it is a careless performance of the duty of the servant.

We are therefore of the opinion that the Court of Civil Appeals took an erroneous view of this question. We are also of the opinion that the trial judge erred in directing a verdict for the plaintiff, since there were several questions of fact,which the parties had the right to have the jury pass on. One of these was the question whether or not Gatlin was the servant'of 'the railroad company. That Moore was its servant and had the authority to represent and act for it in guarding the depot and the property in it may be conceded.

It does not follow that he had authority to employ for it other servants and substitute them in his place. No implication of such power of employment would arise from the mere fact that he himself could have done the things which he engaged.them to do. On the contrary, it would have to be proved as a fact that he had received such power from his employer, and whether he had or not was a controverted question upon which the jury would have to pass. Woods’ Mast, and Servt., 185.

We can not anticipate the evidence upon another trial, but it may be proper also to submit to the jury, among others which need not be discussed, the question whether, if Moore had authority to employ the guards, they were employed in behalf of the railroad company or of the express company only. If it was Moore’s duty to the railroad compan}' to do that which he allowed Gatlin and West to do, and if he had authority from such company to so employ them and they were thus discharging a duty which Moore owed to it, the fact that they were not to be paid would not be material.

A distinct ground upon which it is claimed that the railroad company would be liable is that it owed to its servants the duty of giving to the guards such information and instruction as would protect the other servants against danger in going to the station, and also of giving to such other servants warning of the presence of such danger. This is a theory that should have been submitted to the jury, but the facts were not such as authorized the court to declare a liability as matter of law.

Whether or not such instructions and warning were called for was a question for the jury and depended upon the further questions, whether or not the presence of other employes and danger to them at the depot ought reasonably to have been foreseen by the company, and whether or not the omission of such precautions constituted negligence of which the shooting of Lipscomb was the proximate result. Railway v. Bigham, 90 Texas, 225; Dawson v. St. Louis, etc., Co., 94 Texas, 424.

In determining this issue, the knowledge of Moore that the guards were in the station for the purpose for which they were put there would be treated as the knowledge of the railroad company, whether the guards were its servants or not. He represented the company in keeping the station, and if a condition of such peril to employes existed there, from any cause, as required him in the exercise of ordinary care for their safety to take measures for their protection, his omission to do so would be the omission of a duty owed by the master to the servants, for which it would be liable.

Many other grounds were urged in the Court of Civil Appeals for the reversal of the judgment of the District Court, of which such as may be of importance in another trial will be considered.

One Francis testified as to the authority and duties of railroad station agents, giving them, in general, as they have been above stated, and added: “In the event the local or station agent at such depot should have reasonable grounds for believing the depot of which he was in charge was about to be robbed or burglarized of freight or express matter, if any therein, or was about to be stolen, he should watch the property himself, and if he thought it necessary, he could hire others to care for and protect it/’ The form of this statement indicates that it is a mere opinion or deduction of the witness from the duties generally incumbent upon agents, and not the statement of a fact which he had observed or knew.

As an opinion, it was not admissible. • The evidence indicates that the duties and authority of station agents are largely evidenced by usage rather than by express contract or instructions, and the witness, after testifying that he was familiar with these usages, could properly state, as he did, what powers he had known such agents to exercise habitually; but it was not competent for him to deduce from what he had seen the possession of further powers of the exercise of which he had not known.

The question of authority vel non was one of fact to be determined by the jury and not proved by the opinions of witnesses. This will dispose also of the assignments upon the exclusion of answers of DafEan and Smith upon the same subject. Upon the measure of damages, evidence that deceased was a member of the church and did not use profane language was too remote to be of value in determining the pecuniary loss of plaintiffs. The court did not err in excluding evidence that plaintiffs had received money upon policies of insurance.

This court has heretofore passed upon that question in considering applications for writs of error in the cases of Railway v. Rasberry, 34 Southwestern Reporter, 794, and Railway v. Weaver, 41 Southwestern Reporter, 846, and has held that such evidence is not admissible. The judgment of the Court of Civil Appeals, so far as it reverses the judgment of the District Court, is affirmed; judgment is here rendered in favor of Wells-Fargo Express Company; and the cause between the plaintiffs and the other defendant is remanded for further proceedings in accordance with this opinion.

Reversed and rendered in part and remanded in pari.