Anderson-Berney Bldg. Co. v. Lowry, 14597.

• Decision Date: 07 January 1944
• Docket Number: No. 14597.,14597.
• Citation: 177 S.W.2d 984
• Parties: ANDERSON-BERNEY BLDG. CO. v. LOWRY.
• Court: Texas Court of Appeals

177 S.W.2d 984

ANDERSON-BERNEY BLDG. CO. v. LOWRY.

No. 14597.

Court of Civil Appeals of Texas. Fort Worth.

January 7, 1944.

Rehearing Denied February 25, 1944.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action by R. E. Lowry against the Anderson-Berney Building Company for injuries sustained by plaintiff while engaged in performance of painting contract in the building owned by defendant, as the result of conduct of defendant's employee. Judgment for plaintiff, and defendant appeals.

Affirmed.

Marvin B. Simpson and Robert Harrison, both of Fort Worth, for appellant.

H. S. Lattimore, of Fort Worth, for appellee.

SPEER, Justice.

Plaintiff R. E. Lowry sued defendant Anderson-Berney Building Company, a corporation, for damages alleged to have been sustained when an employee of defendant slapped plaintiff on the shoulder and caused him to fall and break his hip.

Plaintiff's petition is to the effect that defendant was the owner of the Neil P. Anderson Building in Fort Worth, Texas; that the structure consisted of a tall office building and some one story buildings adjacent thereto; that he had been employed to do some painting and decorating in one of the smaller buildings; that on September 8, 1938, while he was engaged in said work, defendant's building superintendent, Mr. Countryman, whose duty it was to supervise and inspect the work being done by plaintiff, and get it done as quickly as possible, and while in the discharge of his duties to defendant, approached plaintiff while engaged in the work, and without the knowledge by plaintiff of Countryman's presence, the said Countryman struck plaintiff on the back and shoulder, and in defiant tones inquired of plaintiff why he did not get to work. Plaintiff further alleged that from childhood he had suffered with a stiff hip joint, and that because of that affliction he could not brace himself against a fall toward the injured member that because of the blow received from Countryman, he fell on some lumber and broke his hip. It was averred that Countryman was a man of huge stature and knew of plaintiff's afflicted hip. It was asserted that Countryman's acts were negligence, attributable to defendant, and proximately caused plaintiff's injuries. Ample allegations were made of the nature and extent of the injury, and damages were sought in a specified amount.

Defendant's answer consisted of the general denial and specially that the act committed by Countryman was committed in his own behalf through a spirit of playfulness, and was not within the scope of his employment by defendant.

A jury trial was had and the substance of the verdict was that (1) Lowry's fall was caused by the act of Countryman at the time; (2) Countryman's acts were negligence; and (3) the proximate cause of the fall of plaintiff; (4) when Countryman caused plaintiff to fall, Countryman was acting within the scope of his employment; (5) Lowry sustained an injury to his hip in the fall; (6) Countryman's act on the occasion in question was intended by him only as a friendly and social gesture on his part; (7) it was intended by Countryman that his act on that occasion should have an effect on the performance of the painting work being done by plaintiff. After an explanation and definition by the court of what might be considered by the jury, of which no complaint is made, the jury found plaintiff's damages to be $1500. Judgment was entered for plaintiff on the verdict for the amount so found, and defendant has appealed therefrom.

This case has been before us upon a former appeal. Anderson-Berney Bldg. Co. v. Lowry, Tex.Civ.App., 143 S.W.2d 401. There were other matters involved at the former trial, not before us now, as will be seen by the statement made by us in the cited opinion. We reversed and rendered the trial court's judgment. It will be noted that we held it was error to submit special issue No. 5, quoted in the opinion. That issue was not submitted at the subsequent trial. We also held that there was no testimony to support the finding by the jury that Countryman was acting within the scope of his employment when he injured Lowry.

The Supreme Court granted a writ of error and reversed our holding relative to the scope of Countryman's employment. Lowry v. Anderson-Berney Bldg. Co., 139 Tex. 29, 161 S.W.2d 459. The Supreme Court quoted parts of the testimony and concluded that there was sufficient evidence to take to the jury the question of whether or not Countryman was acting within the scope of his employment when his acts caused Lowry to fall.

In addition to the testimony referred to by the Supreme Court on the point, we find from this record that while Countryman denied substantially all of the material testimony given by Lowry, yet he admitted while testifying that shortly after the accident he made and signed a written statement concerning the transaction. In it he said he did enter the building where Lowry was working, and this significant language was used: "My reason for going into the building was to see how the work was getting along, as I have to look after such matters as a part of my work." Having admitted signing such statement, he testified that it spoke the truth. Upon redirect examination by defendant's counsel, Countryman's explanation of the quoted part of the written statement was: "I meant to go in (the building) and see if the work was ready for me to go ahead and do the rest of the work, the repair work that I had to do."

Counsel for defendant, the building company, admits in his brief that the testimony on this trial is substantially the same as it was on the former trial. A careful examination of the testimony reveals this to be true. Under the views of the Supreme Court, as expressed above, upon the same state of facts, there is no option left to us but to obey that Court's mandate.

The four points of error brought forward by defendant assert that the jury's findings that Countryman was acting within the scope of his employment when he committed the act complained of and that it was done by him to have an effect on the performance of the painting work being done by Lowry, are without support in the evidence and are contrary to the overwhelming preponderance of the testimony; and further it is asserted that since Countryman's act in slapping Lowry on the shoulder was only a friendly gesture by Countryman, as found by the jury, it conclusively appears that Countryman's acts were not within the scope of his employment and his principal was not liable for the results.

Defendant earnestly contends in effect that even to concede for the sake of argument that Countryman's employment gave him supervision or control over the work being done by Lowry, the mere fact that in a spirit of playfulness he slapped Lowry on the shoulder and urged him to go to work and get the job done, and because of the gesture, Lowry fell and sustained the injury, the defendant would not be responsible for the result, because the defendant could not have reasonably anticipated that its employee would resort to the commission of an assault to get the work done. Such cases as Magnolia Petroleum Co. v. Guffey, Tex.Com.App., 95 S.W.2d 690, and Genovese v. Butt, Tex. Com.App., 48 S.W.2d 587, are cited and relied upon to support the contention. It is contended that the cited cases should be decisive of the point before us as to the acts of Countryman being within the scope of his employment. Defendant argues that since our Supreme Court had held in the Guffey case that there was no liability of the principal in that case, "It is too plain for a difference of opinion that the appellant here is not liable for Countryman's assault committed in the supervision of the painting job." The language used in the Guffey case above cited supports the contention of defendant, but we note the Supreme Court did not permit that opinion to stand; on motion for rehearing that opinion was set aside and it is stated that the Court was in error in the original holding. The reverse of the conclusions expressed in the original opinion (95 S.W.2d 690) was finally adopted as the law applicable to the facts there set out. See Magnolia Petroleum Co. v. Guffey, 129 Tex. 293, 102 S.W.2d 408. In the last opinion they also refer to the Genovese case, supra, and distinguish it from the Guffey case, and say it does not support their original view.

A reading of the Genovese case will disclose the very harsh means employed by the alleged agent to collect a debt from the principal's debtor. It was held that authority to the agent to collect the debt did not imply authority to resort to the unreasonable and harsh means employed.

Applicable to the instant case, it is scarcely justified to refer in...