C. C. Slaughter Cattle Co. v. Pastrana

• Decision Date: 18 December 1919
• Docket Number: (No. 1037.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 217 S.W. 749
• Parties: C. C. SLAUGHTER CATTLE CO. v. PASTRANA.
• Court: Texas Court of Appeals

Page 749

217 S.W. 749

C. C. SLAUGHTER CATTLE CO. v. PASTRANA.

(No. 1037.)^*

Court of Civil Appeals of Texas. El Paso.

December 18, 1919.

On Rehearing, January 15, 1920.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Cruz Pastrana against the C. C. Slaughter Cattle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hudspeth, Wallace, Harper & Berkshire, of El Paso, for appellant.

Lea, McGrady, Thomason & Edwards, M. M. Winningham, and R. W. McConnell, all of El Paso, for appellee.

HIGGINS, J.

Appellant, hereinafter designated company, is a private corporation incorporated under the laws of Texas; the purpose for which it is incorporated being "the raising, buying, and selling of live stock." It owns and operates a ranch of about 250,000 acres of land in Hockley and Cochran counties in the plains country of Texas, near the town of Lubbock.

It appears that upon this ranch it is also engaged in farming operations, and is likewise so engaged upon a ranch owned by it in New Mexico. These farming operations, while quite extensive, are "side issues" according to the evidence; the main business of the company being that for which it was incorporated. Upon the dates mentioned herein R. L. Slaughter was a director and president of the company. John Lemon was its general manager in charge of its ranch properties and business in the counties aforesaid. In January, 1918, Slaughter, in El Paso county, Tex., entered into a written contract with appellee, Pastrana, whereby the latter obligated himself to work on Slaughter's ranch near Lubbock for three months; "the work to be done being poisoning ground squirrels and other work which is offered and which is customary on a ranch." This contract was signed by Slaughter and Pastrana. At the same time and place Slaughter employed a number of other Mexicans for the same purpose. In employing these laborers Slaughter was acting under the instructions of the company's general manager, Lemon. The ranch designated in the contract was in fact the ranch of the company, and in making the contract Slaughter was acting for and in behalf of the company, which was his undisclosed principal. Slaughter conducted the party of laborers to Lubbock, whence they were taken to what is known as the "Zavalla ranch" of the company. There the party was placed under the control of Mike November, appellant's foreman in charge of killing prairie dogs (ground squirrels). At the Zavalla ranch there was not enough grain to kill the dogs. After the arrival of the party at the Zavalla ranch, Lemon instructed November to send Pastrana to the main headquarters ranch house to procure the necessary supply of grain and bring it to the Zavalla ranch. Pastrana was to also bring back some bedding for the use of the party. In accordance with these instructions, and upon the day after the arrival of the party at the Zavalla ranch, November started Pastrana to the headquarters ranch house for the purpose aforesaid. This was about January 8th. Pastrana was accompanied by two other members of the party of laborers, and, according to the testimony of November, these other two went without his knowledge or consent. The headquarters house was about 30 or 32 miles distant from the Zavalla ranch. The road led first to what is designated in the evidence as the "dead cow tank," so called because at the time there was a dead cow there; thence to the "cowboy camp"; thence to the headquarters house. According to the testimony of defendant's witnesses, the road was very old, frequently traveled and plain the whole distance. According to the testimony of Pastrana and Sanchez, who accompanied him, the road was not plain, and they had difficulty in following it. Between the Zavalla ranch and the dead cow tank there is a branch road which goes by Boyd's ranch house, but it leads back into the direct road to the tank. This branch is not the direct road and is about 2 miles longer. Pastrana started upon the journey during the forenoon in an open wagon drawn by mules furnished by the company. He was furnished by November with a sketch of the road with full instructions as to the direction in which the headquarters house was situate and as to gates, windmills, tanks, etc., along the road. After the party left the Zavalla ranch, the general manager, Lemon, the president, R. L. Slaughter, and a Dr. Veale, arrived in an automobile at said ranch and had lunch there. After lunch they departed in the automobile en route to the cowboy camp, where Dr. Veale was to vaccinate a herd of cattle. At about 2:30 p. m. they overtook Pastrana and his companions about a mile and a quarter before reaching Boyd's ranchhouse. Pastrana had gotten off the main and right road which November had started him on and had taken the branch which led by Boyd's. At the time Pastrana was thus overtaken he had traveled only about 12 or 14 miles. The automobile stopped, and a conversation ensued between Pastrana and Slaughter in the immediate presence of Lemon and Dr. Veale. According to the testimony of Pastrana and Sanchez, the former told Slaughter they were cold, hungry, and lost, and requested him to send some one to meet and guide them to their destination; that Slaughter told them to follow his automobile tracks to the dead cow tank, where he would wait for them, and but for this promise they would have stayed at Boyd's house to which they were then going. According to the testimony of Slaughter, Lemon, and Dr. Veale, no such conversation occurred, but Slaughter in a mild way reprimanded Pastrana for traveling so slowly, and likewise his companions for being with Pastrana, stating to them they had no business there and their presence was unauthorized. The testimony of the members of the automobile party was then to the further effect that Slaughter told Pastrana to hurry along, and when he got to a tank where there was an iron trough he would find a dead cow therein, and for him to unhitch the mules and pull the cow out, and that he further told Pastrana he had wasted too much time to reach headquarters, but there was a camp five miles beyond the tank where he was directed to stop for the night, and was told they would be cared for by the party there in charge; that he told Pastrana to follow his tracks to this camp and he would put obstructions in any road that led off; further that he questioned Pastrana to see if he knew directions, and Pastrana correctly pointed to north and northwest and exhibited the sketch of the road furnished by November. The camp thus referred to by Slaughter was the cowboy camp where the vaccination was to be done by Dr. Veale. Slaughter and his companions left Pastrana and went first to the tank, where they decided not to intrust the removal of the cow to Pastrana, and did it themselves. They then went to the cowboy camp, where Dr. Veale and Lemon vaccinated the cattle, and thence to the headquarters. Pastrana drove to the dead cow tank. In leaving there he got on the wrong road and became lost. He came back to the tank, and it was then dark. He then attempted to find his way back to the Boyd ranch, but was unable to do so. Subsequent to the departure of the automobile party from Pastrana a blizzard came on, and Pastrana and his party wandered lost for two nights and one day. The evidence is conflicting as to the hour the weather changed and the blizzard came up, but in any event it was very shortly after the automobile party left the cowboy camp. Slaughter testified that the first blast of the blizzard occurred just as they reached the headquarters. Upon the second day Pastrana and Sanchez regained the Boyd ranch. In the meantime the third member of the party had perished of cold, and Pastrana and Sanchez had their limbs and hands frozen. As a consequence Pastrana lost both feet and most of his fingers upon both hands. He brought this suit in El Paso county against R. L. Slaughter and the company to recover damages resulting from his injuries. The company claimed the privilege of being sued in a county other than El Paso.

By agreement the plea of privilege was tried along with the merits of the case. The cause was submitted upon special issues, and upon the findings made judgment was rendered in Pastrana's favor against the company for $10,000. No recovery was had against R. L. Slaughter. Facts and evidence in the case not shown by the foregoing statement will be indicated in the course of the opinion.

Opinion.

The first assignment complains of the overruling of appellant's plea of privilege.

Under section 24, art. 1830, R. S., suits against private corporations may be commenced in any county in which the cause of action, or a part thereof, arose. Appellee's cause of action arises out of the relationship of master and servant existing between appellant and himself. Such a relationship arises upon a contract, express or implied, between the master, on the one hand, and the servant, on the other. So. Pac. Co. v. Wellington, 36 S. W. 1114; Marshall v. Sirman, 153 S. W. 401; 18 R. C. L. 493. In this case the relationship arose between appellant and appellee by virtue of the written contract of employment entered into between appellee and R. L. Slaughter, which the undisputed facts disclose was made in El Paso, and that in making the same Slaughter was acting for and on behalf of appellant and was thereunto authorized. The duties imposed by law upon the master in favor of the servant by this contract were thus imposed upon appellant in favor of appellee. Appellee predicates his suit upon the breach of a duty owing to him by his master, and his suit is primarily founded upon the contract of employment.

The contract having been made in El Paso county, a part of appellee's cause arose there, and the venue was properly laid in that county. Under the authorities this is well settled. Phillio v. Blythe, 12 Tex. 127; Commission Co. v. Hart (Sup.) 20 S. W. 131; Mangum v. Milling Co., 95 S. W....