Gulf, C. & S. F. Ry. Co. v. Reed

• Decision Date: 24 March 1891
• Citation: 15 S.W. 1105
• Court: Texas Supreme Court
• Parties: GULF, C. & S. F. RY. CO. v. REED.

15 S.W. 1105

GULF, C. & S. F. RY. CO. v. REED.

Supreme Court of Texas.

March 24, 1891.

Commissioners' decision. Error from district court, Harris county.

J. W. Terry, for plaintiff in error. Burke & Kirlicks, and Henry F. Fisher, for defendant in error.

MARR, J.

There was a verdict and judgment in the court below against the plaintiff in error for $50 as actual and $450 as exemplary damages. We concur with counsel for the defendant in error that "all of the assignments relied on and urged by the plaintiff in error contend for but the one proposition, to-wit, `that the verdict and judgment for exemplary damages is unauthorized.'" The defendant in error, Charles Reed, (plaintiff in the court below,) in September, 1889, was living in Harris county with his family, ten persons in all, on seven acres of land near the city of Houston, which land bordered on and took in a part of Bray's bayou, a small creek or bayou in said county. Immediately on the water's edge of said bayou, and on the seven acres owned by Charles Reed, was a spring. It supplied his family and his stock with its clear waters. He had no well or cistern on his place. The track and road-way of the Gulf, Colorado & Santa Fe Railroad crossed Bray's bayou at a point near and above the land of Charles Reed, and south of same. The natural flow of the water of Bray's bayou was from the point where the railroad crossed it towards Charles Reed's seven acres and spring. The Gulf, Colorado & Santa Fe Railway Company started out to make Bray's bayou, at the point where its bridge and track crossed it, and within a stone's throw of Reed's house (44 feet) a "dumping place for dead hogs and cattle," established and used by servants of the defendant on two or three occasions without the consent of the plaintiff, Reed, but against his wishes. He brought this action against the defendant to recover both actual and exemplary damages for the acts of its servants in "dumping" dead cattle in said bayou on two different occasions in the month of September, 1889, whereby, it is alleged, the water of the stream and of the spring used by the plaintiff and his family was polluted, and rendered unfit for use, in consequence of which he and his family became sick, etc., and his horses died from drinking the foul water, etc. He also charged that the acts of the servant or servants were committed willfully and maliciously and by order of the defendant, and that he had notified the defendant of these acts of its servants, and requested it to remove the carrion from the bayou, but this it refused and failed to do, but in every particular encouraged the servants in the acts, and fully confirmed and ratified the same. The fact is not disputed on this appeal that an agent of the company, one Potter, the yard-master of the defendant at Houston, did put the dead cattle into the bayou, as alleged by plaintiff, and as above stated. Assuming, after verdict, the truth of plaintiff's evidence, it appears that in September, 1889, Potter, as servant of defendant, placed the carcasses of dead cattle in the bayou. On the first occasion he put a dead cow in there, near plaintiff's residence; and within two or three days thereafter three more dead cows. When the first of these animals was put into the stream plaintiff went to the office of the defendant in Houston, and made complaint of the fact to a person there, who was pointed out to him as defendant's agent, and who "acted as if he had control and management of the office and those in it. There were three other men there besides him. I thought he was the same man who paid me the $10 in the office when the hogs had been thrown there before." Elsewhere: "I don't know the name of the man," etc. (Testimony of plaintiff.) Plaintiff requested this party to have the cow removed, but this was never done. In fact none of the cattle were removed, but were allowed to lay where deposited. He replied to plaintiff: "It might be the section boss put them there." These cattle had died or been killed in transportation on defendant's road. Over a year before the acts complained of in this suit had occurred, a servant of defendant had thrown a car-load of dead hogs in the same place, for which, on demand, the company voluntarily paid plaintiff damages in the sum of $10; but this act of depositing the lately deceased swine was not performed by Potter, but by another servant of the company. He had but recently begun working for the company at Houston when he placed the cattle in Bray's bayou, though he had been working for the defendant at other places.

We believe that the foregoing statement is a fair summary of all the facts bearing upon the point at issue, and in view of which we feel constrained to hold that the verdict and judgment rendered in the court below against the plaintiff in error for exemplary damages is manifestly against the law and the evidence. The rule of law that the master is not liable in exemplary or punitory damages for the torts of the servant unless he authorized the same, or with knowledge of the wrong and its nature has adopted or ratified it, so as to make it his act in fact, is too well settled in this state to be now questioned. In case of railway corporations the rule is that to amount to ratification the adoption or confirmation of the wrongful act of the servant must be shown to be by some chief officer, vice-principal, or alter ego (as he is sometimes called) of the company, who must be proven to possess under and for the company sufficient authority and discretion to act and speak for the company, as if it were, figuratively speaking, bodily present in the persons of its...