Glade v. Dietert, 15678

• Decision Date: 27 January 1956
• Docket Number: No. 15678,15678
• Citation: 286 S.W.2d 955
• Parties: William P. GLADE, d/b/a Glade Construction Company, Appellant, v. Arthur E. DIETERT et ux., Appellees.
• Court: Texas Court of Appeals

Page 955

286 S.W.2d 955

William P. GLADE, d/b/a Glade Construction Company, Appellant, v. Arthur E. DIETERT et ux., Appellees.

No. 15678.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 27, 1956.

Rehearing Denied Feb. 24, 1956.

R. E. Rouer, Robert R. Goodrich, G. Gordan Whitman, John Gano, Earl C. Morgan, and S. G. Johndroe, Jr., Fort Worth, for appellant.

Cantey, Hanger, Johnson, Scarborough & Gooch and Jack C. Wessler, Fort Worth, for appellees.

MASSEY, Chief Justice.

On September 10, 1954, this court decided the case of City of Fort Worth v. Dietert, 271 S.W.2d 299, error refused. In that case, the County Court at Law of Tarrant County had refused the application of the City of Fort Worth for a temporary injunction restraining Dietert and his wife from prosecuting in the District Court a suit for damages against the Glade Construction Company. The City prayed for injunctive relief under the theory that the damage done by the Company to the land of the Dieterts in the trespass upon it, at the direction of the City, was subject matter embraced in the condemnation suit which had been placed on file in the County Court. We upheld the action of the court below under the theory that the jurisdiction of such court over the condemnation suit was related to different subject matter from that in Dietert's suit for damages in the District Court.

This appeal is from a judgment for damages in behalf of Arthur E. Dietert and wife against William, P. Glade, d/b/a Glade Construction Company, hereinafter called Glade, on account of the trespass upon the Dietert land on July 24, 1953. This suit was tried in the District Court of Tarrant County after our judgment became final in the injunction case.

By two points of error, Glade advances a proposition which we interpret as follows: 'Where under authority of eminent domain a principal may take property of another, such other may not prosecute a suit against the principal's agent for damages growing out of his trespass upon the other's premises, if that trespass was non-negligent and at the direction of the principal and if the principal exercises the right of condemnation of the property so damaged prior to the time its owner prosecuted his damages suit against the agent.' The proposition is rejected and the points of error are overruled. We recognize that there are instances wherein the principal is liable though the agent is not, but none of the cases and authorities bearing upon such cover a situation such as here posed, i. e., a case of malfeasance on the part of the agent in the trespass upon and direct damage to the property of another at a time prior to and not involved with the eminent domain proceedings later filed. The general rule to be applied imposes liability upon the agent as well as upon the principal. See 20 A.L.R. at page 109, and 99 A.L.R. at page 410; 2 Tex.Jur., p. 589, Agency, sec. 177, 'Agency or Employment as Affecting Liability of Tortfeasor'; Restatement of the Law, Agency, sec. 343; City of Dallas v. Miller, 1894, 7 Tex.Civ.App. 503, 27 S.W. 498; Wilson v. Newton County, Tex.Civ.App. Beaumont, 1925, 269 S.W. 227; Schooler v. State, Tex.Civ.App. El Paso, 1943, 175 S.W.2d 664, writ refused, w.m.; King v. Schaff, Tex.Civ.App. Fort Worth, 1918, 204 S.W. 1039; Black v. Baker, Tex.Com.App. 1938, 130 Tex. 454, 111 S.W.2d 706.

We believe the case of City of Fort Worth v. Dietert, supra, demonstrated the distinction between the condemnation action pending between the City and Dietert and the trespass action between Glade and Dietert,-demonstrated the distinction between the question of damages in the distinct actions,-and demonstrated that the prosecution of the suit for damages on account of the trespass in no way interferes with the proper award of damages to Dietert pursuant to the condemnation. Since the condemnation case is untried and pending, even though pursuant to the proceedings there has been a 'taking' of certain property of Dietert and perhaps also...