Burnett v. Oechsner

• Decision Date: 17 April 1899
• Citation: 50 S.W. 562
• Parties: BURNETT et al. v. OECHSNER.
• Court: Texas Supreme Court

50 S.W. 562

BURNETT et al. v. OECHSNER.

Supreme Court of Texas.

April 17, 1899.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by Nick Oechsner against S. B. Burnett and others. There was a judgment for plaintiff, affirmed by the court of civil appeals, which certified questions to this court for determination.

Flood, Hughes & Foster, for appellants. S. H. Hodges and L. H. Mathis, for appellee.

GAINES, C. J.

In this case a question is certified for our determination, which is thus stated by the court of civil appeals for the Second supreme judicial district:

"This suit was brought by the appellee against appellant Burnett to recover damages in the sum of $129 for the alleged conversion of 26 hogs belonging to appellee, the suit originating in the justice's court, and being tried on appeal in the county court, resulting in a judgment there for $125, from which this appeal is prosecuted. Upon conclusions noted, the judgment was affirmed in this court January 7, 1899, Hunter, J., dissenting, and the case is now pending before us on motion for rehearing. At the suggestion of appellant, in view of the dissent, we deem it proper to certify to your honors for decision, as provided in article 1043, Rev. St., the controlling question in the case,—which is whether, upon the facts below stated, appellant was liable for the acts of one Williams in penning and hauling the hogs from appellant's ranch in Wichita county, Texas, across Red river, into the Indian Territory, a distance of about 25 miles, and unloading them there at appellant's hog ranch. Williams was in charge of appellant's farm in Wichita county, and was appellant's boss on the farm, but not on the hog ranch; and he had no express authority from appellant to haul the hogs from the farm to the ranch. The hogs, however, had frequently entered the farm inclosures, destroying and wasting more or less corn belonging to appellant, and had been several times penned, at the instance of Williams, to prevent damage to the crops, who as often notified appellee of such facts, requesting him to take the hogs away; but, though he did take them away, he did not keep them up, as was the custom of the neighborhood, but permitted them to run at large. Upon being informed by Williams that the hogs were eating up the corn, appellant instructed Williams to keep them out, but did not "give him any special instructions further than to keep them out." He did not tell him to keep them out if he had to kill them, but did tell him that if appellee did not keep his hogs out, and if he (appellant) had to run after them like Williams had to do, he (appellant) would kill them. The inference from the facts proven was irresistible that Williams, in removing the hogs from the farm to the hog ranch, was doing it as a means of keeping them out of the farm inclosures, the means previously tried proving unavailing, and that he was not acting in his own interest, except possibly to rid himself of...