Home Telephone & Electric Co. v. Branton

• Decision Date: 25 May 1928
• Docket Number: (No. 449.)
• Parties: HOME TELEPHONE & ELECTRIC CO. v. BRANTON.
• Court: Texas Court of Appeals

7 S.W.2d 627

HOME TELEPHONE & ELECTRIC CO. v. BRANTON.

(No. 449.)

Court of Civil Appeals of Texas. Eastland.

May 25, 1928.

Rehearing Denied June 15, 1928.

Appeal from District Court, Eastland County; Elso Been, Judge.

Action by W. A. Branton against the Home Telephone & Electric Company and another. From a judgment for plaintiff, defendants appeal. Affirmed in part, and reversed and rendered in part.

Butts & Wright, of Cisco, and J. R. Black, of Baird, for appellant.

Grisham Bros., of Eastland, for appellee.

HICKMAN, C. J.

Appellee W. A. Branton recovered judgment in the court below against appellant Home Telephone & Electric Company for damages to a tract of land and tank of water on account of the unauthorized erection thereon by appellant of a telephone pole, guy wire, and anchor. Appellee in the same suit recovered judgment against appellant and one Paul Beardon for damages on account of injuries sustained by him as the result of an assault committed upon him by Paul Beardon, an employee of appellant. Both of the defendants in the court below perfected an appeal to this court, but it appears that no brief has been filed for Paul Beardon. Such facts as are necessary to an understanding of the questions discussed will be stated in connection with the discussion thereof.

The most difficult questions for decision upon this appeal are questions of practice raised in appellee's brief and thereby made necessary for our decision. The first objection raised by appellee is:

"If this appeal is before this court at all, it is by virtue of a supersedeas bond, as appears in the transcript at page 71. It will be noted that this bond was never approved by the district clerk."

The bond referred to appears to have been executed by sureties who reside in Callahan county. Attached thereto is a certificate from the district clerk of Callahan county, certifying to the solvency of the sureties in the manner provided by law. The bond was filed by the district clerk of Eastland county, but does not show his approval thereof. There is no evidence furnished by appellee, and it does not otherwise appear, that the clerk refused to approve the bond. Under this state of facts, and in view of the fact that the bond was filed by the clerk and is contained in the transcript certified to by him, we must presume that he approved it. Evans v. Pigg, 28 Tex. 586; McLane v. Russell, 29 Tex. 128; Bridges v. Condiff, 45 Tex. 437; Cox v. Gordon (Tex. Civ. App.) 241 S. W. 286.

The second objection of appellee is:

"The judgment of the court below is not in the transcript. The only thing that smacks of a judgment in the transcript is at page 39, and is merely an order on demurrers separate and apart from the judgment, as plainly appears therefrom."

This objection is not sustained by the record. There is an interlocutory order at page 39 of the transcript, but this order is followed by a final judgment set out on pages 40 to 43, inclusive. This objection is overruled.

The third objection calls into question the sufficiency of the description of the judgment in the supersedeas bond. The transcript in this case was filed in this court on January 4, 1928. This objection to the form of the bond was filed on April 2, 1928. Under rule 8, governing the Courts of Civil Appeals and the many decisions construing same, this objection comes too late, and has been waived by appellee.

But when the objections urged by appellee to a consideration of appellant's brief are considered, more serious questions are presented. These objections in substance are: (1) That the propositions urged by appellant are not, in fact, propositions of law, but are arguments, assumptions, and conclusions; (2) that there is not one single correlated statement from the record under any proposition, but in each instance instead of a correlated statement there is an argument intermixed with quotations from the record, conclusions, and deductions of counsel.

We have carefully considered these objections to the brief and must conclude that, in the main, they are well taken. Only a few of the so-called propositions are in fact propositions of law, and most of the ones which could be so classified are not followed up by proper statements from the record. No assignment challenging the correctness of the judgment for damages to the land is briefed in such manner as that we would be warranted in considering it over the objections of appellee.

There is but one proposition contained in the brief which we can classify as a proposition of law, and which is followed by a proper statement from the record as required by the rules. This is the fourth proposition, and is based upon an assignment of error complaining of the action of the trial court in refusing to peremptorily instruct the jury to return a verdict in favor of appellant on the issue of damages resulting to appellee from the assault committed upon him by Paul Beardon. The facts disclose that Paul Beardon was the local manager for appellant at Rising Star, with such duties and authority as are usually conferred upon local managers of telephone exchanges. Appellant erected a telephone line along the highway, but the particular pole, guy wire, and anchor which were the cause of the trouble between appellee and Paul Beardon were erected on and attached to appellee's land by appellant's construction crew without appellee's knowledge or consent, and in such manner as to render appellant a trespasser in erecting same thereon. Appellee was away from home when the trespass was committed. After his return he went to see Paul Beardon on more than one occasion, protesting against the presence of the pole, guy wire, and anchor on his premises, and requesting that they be removed. Appellee testified that Paul Beardon made him promises which were unperformed, one of the promises being that he would telephone to the home office of the company at Baird for authority to remove the pole. Details of the assault are described by the appellee in this language:

"This last conversation I had with him was the time he knocked me in the head. I went to town, I disremember the time, and I went to Mr. Alford and got papers, thinking I was going to sue. As I was walking up the street, I noticed my son-in-law across the street at the Continental Bank. I was talking to him about moving my road equipment to Breckenridge. When Mr. Beardon came down, I had the letters and things in my hand that Mr. Alford gave me, or notice that I would sue. That was up in the morning. * * * I was on the sidewalk when I saw Paul Beardon; I don't think it was very far from his place of business, for I had started there to give him these papers. It might not have been over 20 feet from his place of business. As to what was said between us, I hate to make the expression that I told him. I asked him why he had told me a damned lie and not done what he said he would. I don't remember what he said. Somebody hit me at that time; I don't know who it was. I was hit right there on the neck. I don't remember of being hit anywhere else at that time."

The evidence is practically undisputed that the assault occurred during the noon hour after Paul Beardon had came from his office to go to lunch, but in our view of the case this fact is immaterial. The question of the liability of appellant for the assault committed by Paul Beardon may not be determined on the basis of the time of day when the assault was committed. Beardon was constantly in the employ of the appellant as local manager, and was on duty, if occasion required, at all hours. We shall therefore dispose of the question presented independently of any consideration of the hour when the assault was committed.

The question of liability of a master for assault committed by his servant has been the subject of many able opinions by the courts of our state. These opinions have so clarified the question as that the liability vel non of a master in a given case should be determined clearly and certainly. The rule of respondeat superior applies, and renders a master liable to a third person assaulted by a servant of the master while acting within the scope of the servant's employment. The rule arises out of the relation of superior and subordinate, and must necessarily be coextensive with that relation and cease when the relation ceases. Whenever the very nature of the employment expressly or impliedly authorizes the servant to use force, and in the exercise of that authority he negligently or willfully uses more force than is necessary to further his master's business, and thereby injures a third person, the master is clearly liable. On the other hand, where the act of the servant is not in the furtherance of the master's business, or for the accomplishment of the object for which he was employed, but...