Cameron Compress Co. v. Kubecka

• Decision Date: 10 March 1926
• Docket Number: (No. 6966.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 283 S.W. 285
• Parties: CAMERON COMPRESS CO. v. KUBECKA.
• Court: Texas Court of Appeals

283 S.W. 285

CAMERON COMPRESS CO. v. KUBECKA.

(No. 6966.)^*

Court of Civil Appeals of Texas. Austin.

March 10, 1926.

Rehearing Denied April 7, 1926.

Appeal from District Court, Milam County; John Watson, Judge.

Action by D. J. Kubecka against the Cameron Compress Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Henderson, Kidd & Henderson, of Cameron, and Collins & Houston, of Dallas, for appellant.

Winbourn Pearce and W. W. Saulsbury, both of Temple, for appellee.

BLAIR, J.

Appellee sued appellant, a corporation, for damages resulting from injuries received at the hands of John Hause, an employee of appellant, who committed an assault upon him. Appellee sought a recovery under the doctrine of respondeat superior, alleging and proving the following facts: Hause was employed by appellant as cotton weigher at defendant's warehouse. He also guarded and protected the warehouse and yards of his employer as a part of his duties. A disastrous fire broke out in the yards and warehouse and consumed a large number of bales of cotton stored with it. Appellant instructed its employee, Hause, to keep any one from going in and upon its premises. After the fire had subsided, appellee went on the premises for the purpose of checking up and determining what cotton bales, if any, belonging to him were left on the premises. Hause told him that he could not do so, but appellee insisted, and, taking a list of his cotton, began checking and inspecting it. Hause went to him and told him to desist, and while undertaking, in the course of his employment, to prevent appellee from checking and inspecting his cotton, made an assault upon him with a large cudgel or scantling, striking him on the head with it and inflicting serious injuries.

A general demurrer and general denial was filed by appellant, and it further specially pleaded that if its employee struck appellee he did so in his own self-defense, and appellant was therefore not responsible for the act.

The jury found upon special issues submitted that Hause was acting within the scope of his employment when he struck appellee, that he struck him as alleged, and that his damages were the sum of $8,000. Special issue No. 3 reads as follows: "Did John Hause strike plaintiff D. J. Kubecka, in self-defense? Answer `Yes' or `No.'" The jury answered the question "No." The court charged as to the burden of proof on this issue the following:

"The burden of proof is upon the defendant to establish by a preponderance of the evidence, no matter from which side adduced, the affirmative of special issue No. 3."

Appellant objected to the charge, contending that under the rule of respondeat superior appellee had to show by a preponderance of the evidence that Hause was acting in the course of his employment in committing the assault, and that if Hause was acting in self-defense he was not acting in the course of his employment, and therefore the burden was on appellee to show that Hause did not commit the assault in self-defense.

We do not sustain the contention. The doctrine or principle of "respondeat superior" has been recognized in all jurisdictions, and literally means, "Let the principal answer." 34 Cyc. 617, quoting vol. 3, Bouv. Law Dict. p. 2922. As applied to this case it simply means that if Hause, the employee, while engaged in the work of the master, made an assault upon appellee, his act in making such assault is the act of appellant. The law is founded upon the principle that the master is liable because he has set in motion the agency that produced the wrong. The rule has been held especially applicable to corporations, because they have no hands, and must necessarily perform all their acts through servants. Woods on Master and Servant, 571; Railway Co. v. Kirk, 1 N. E. 849, 102 Ind. 399, 52 Am. Rep. 675; 18 R. L. C. 801; Dillingham v. Russell, 11 S. W. 139, 73 Tex. 47, 3 L. R. A. 634, 15 Am. St. Rep. 753; Haehl v. Wabash Ry. Co., 24 S. W. 737, 119 Mo. 325.

Under these authorities appellee was only required to allege and prove by a preponderance of the evidence that Hause committed the assault on him in the course of his employment, and, aided by the presumption that all assaults are unlawful, he thereby made a prima facie case against appellant. Johnson v. Daily, 118 S. W. 530, 136 Mo. App. 534; Robertson v. Sisk, 171 S. W. 880, 115 Ark. 461; Hardy v. Schirmer, 124 P. 993, 163 Cal. 272; Haverbekken v. Johnson (Tex. Civ. App.) 248 S. W. 102; St. John v. Eastern Ry. Co., 1 Allen (Mass.) 544; Croft v. Smith (Tex. Civ. App.) 51 S. W. 1089.

Appellant concedes that he made such proof in the first instance, and that he thereby made a prima facie case against it. Appellant also concedes that the burden at least of going forward with the case then shifted to it, which it met by offering proof tending to show Hause acted in his own necessary self-defense in committing the assault. Up to this point there is no dispute as to the duties imposed upon the parties with respect to the application of the two well-established senses in which the "burden of proof" or "burden of going forward with the case" is concerned; but when the evidence was all in, and the case was ready for submission to the jury, the question arose as to the burden of proof in its true sense as to which party was obligated to satisfy the jury by a preponderance of the evidence upon the issue of self-defense. The court placed this burden upon appellant, who specially pleaded it as a defense, which we think is correct.

The fundamental rule, sanctioned by the best authorities, is that the burden of proof rests upon the party who holds the affirmative of an issue or proposition of fact. Amr. & Eng. Ency. of Law, vol. 5, p. 23. "But it is one of those rules which operates alike for the plaintiff and the defendant." Boswell v. Pannell, 180 S. W. 593, 107 Tex. 438. The authority first cited holds the general test in determining who has the affirmative of an issue to be "which party would be successful if no evidence at all were given." A particular test rests with the pleadings, which usually show who asserts and who denies, and, as stated in Boswell v. Pannell, supra, the plaintiff must establish by a preponderance of the evidence the issues pleaded as a basis of his cause of action, and in like manner the defendant must establish by a preponderance of the evidence all matters specially pleaded as a defense to plaintiff's cause of action.

Appellant voluntarily and specially pleaded self-defense in bar of appellee's cause of action in this case. It now contends that self-defense was an affirmative matter available only to Hause, the servant who committed the assault, in a suit against him, which he would have been required to plead and prove in bar of the action, but that no such defense was available to it, the master, and that, although it pleaded self-defense of its employee, it was simply one way of denying appellee's allegations that the servant was acting in the course of his employment, and therefore not a defensive matter that it was required to prove. The contention is without merit.

In the case of Boswell v. Pannell, supra, the Supreme Court held:

"Barrow voluntarily made and relied upon this defense, and assumed the burden to prove it by a preponderance of the evidence. He need not have done so; he could have relied entirely on the failure of the plaintiff, Pannell, to prove his case, standing upon his bare denial of the plaintiff's allegations of fraud and notice of fraud, and confined his defense to evidence rebutting the plaintiff's case. But Barrow did not see proper to go to trial upon pleadings which...