Harrison v. Missouri-Kansas & T. R. Co. of Texas

• Decision Date: 07 December 1935
• Docket Number: No. 11848.,11848.
• Citation: 89 S.W.2d 455
• Parties: HARRISON v. MISSOURI-KANSAS & T. R. CO. OF TEXAS.
• Court: Texas Court of Appeals

89 S.W.2d 455

HARRISON v. MISSOURI-KANSAS & T. R. CO. OF TEXAS.

No. 11848.

Court of Civil Appeals of Texas. Dallas.

December 7, 1935.

Rehearing Denied January 11, 1936.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by W. P. Harrison against the Missouri-Kansas & Texas Railroad Company of Texas. Judgment for defendant, and plaintiff appeals.

Affirmed.

Carden, Starling, Carden & Hemphill, of Dallas, for appellant.

C. C. Huff, G. H. Penland, J. M. Chambers, and Touchstone, Wight, Gormley, & Price, all of Dallas, for appellee.

LOONEY, Justice.

W. P. Harrison sued the Missouri-Kansas & Texas Railroad Company of Texas, for damages resulting from personal injuries received on May 6, 1931, in an automobile accident while he and a Mr. Beavers were en route from Dallas to Denison, the automobile in which they were riding belonged to Beavers and was being driven by him at the time.

At the time of the accident, plaintiff was in the employ of the company as an officer in its special service department. It was the duty of the personnel of this department to safeguard the company's properties from trespass, burglaries, thefts, and to detect and cause to be apprehended those guilty of such offenses. Mr. Ellis, who maintained headquarters at Fort Worth, was at the head of the department; J. B. Butler was district special agent, in charge of the Dallas department, including the territory extending from Dallas to Greenville on the north, from Greenville to Mineola, and from Dallas to Waco on the south; W. E. Beavers was traveling special agent of the Dallas district, and plaintiff was the daytime special officer, his duties being to guard defendant's warehouse and yards in the city of Dallas. Henry Lock, formerly was a traveling special officer of the Dallas district, but at the time of the accident was dangerously ill in the company's hospital at Denison, and a few days previously, Mr. Ellis had stated, in the presence of Butler, Beavers, and Harrison that, if desirious of seeing Lock, they had better go soon.

Plaintiff's allegations are to the effect that he was making the trip with Beavers on this occasion on company business under orders from his superiors, and that the negligence of Beavers, in the manner in which he drove the car, was the proximate cause of the accident and plaintiff's injuries, for which he sought the recovery of damages.

The company defended, on the ground, among others, that at the time neither plaintiff nor his fellow officer Beavers was on company business; that their employment did not require or contemplate, in the absence of special instructions, that they should work at the place and in the territory where the accident occurred, and that they had not received such instructions; that at the time they were on a personal mission to pay a visit to Henry Lock, a fellow officer, seriously ill in the company's hospital at Denison; therefore, plaintiff was not entitled to recover, because at the time of the accident he was not in the course of his employment; because Beavers, his fellow officer, was not in the course of his employment, hence negligence on his part, if any, was not chargeable to the company; that Beavers was not guilty of negligence on the occasion; and, furthermore, that the accident and plaintiff's injuries were the result of an unavoidable accident.

Plaintiff's alleged cause of action was supported alone by his own testimony, whilst the defenses alleged were supported by the testimony of a number of witnesses; in fact, on the pivotal issue, that is whether plaintiff was on company business or on a personal mission when injured, plaintiff's testimony was contradicted by some nineteen or twenty witnesses.

In answer to the special issues, the jury found that Butler, district special agent, had not been authorized to send plaintiff to Denison with Beavers on the occasion; that plaintiff did not believe Butler had such authority, and did not understand from any language or conduct of Butler that he, plaintiff, was expected to accompany Beavers to Denison on company business; that at the time plaintiff was not traveling upon a mission for the company; that his sole purpose in undertaking the trip was to visit Henry Lock; and, furthermore, that he was injured as the result of an unavoidable accident. Based on these findings, the court rendered judgment for defendant, from which plaintiff appealed. These findings are amply supported by evidence and are adopted as our conclusions of fact.

When the case was reached for trial, plaintiff announced ready, defendant's counsel announced tentatively, stating that a definite announcement could not be made before 2 o'clock in the afternoon, due to the fact that a material witness, Mr. J. K. Ellis, was in a hospital, and that defendant could not ascertain before 2 o'clock whether the witness could attend. In this situation, in order to save time, the court suggested that the parties proceed to select a jury, and there being no objection, it was so ordered; thereupon came into court a panel of twenty-four jurors out of the general panel for the week, drawn and assigned for service as provided in article 2138, R.S. 1925. Plaintiff's counsel made no demand upon the trial judge to cause the names of all members of the general panel available for service as jurors in such case to be drawn as provided in said article, but proceeded without objection to interrogate members of this panel, and completed the interrogations during the forenoon. It developed that there were on the panel five employees of the Texas & Pacific...