Houston Transit Co. v. Felder

• Decision Date: 04 February 1948
• Docket Number: No. A-1410.,A-1410.
• Citation: 208 S.W.2d 880
• Parties: HOUSTON TRANSIT CO. v. FELDER.
• Court: Texas Supreme Court

208 S.W.2d 880

HOUSTON TRANSIT CO. v. FELDER.

No. A-1410.

Supreme Court of Texas.

February 4, 1948.

Rehearing Denied March 17, 1948.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Guy Felder against Houston Transit Company for damages sustained through an assault and battery committed by defendant's driver. Judgment for defendant was reversed by Court of Civil Appeals, 203 S.W.2d 831, and defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Baker, Botts, Andrews & Walne, J. C. Hutcheson, III, and J. Curtiss Brown, all of Houston, for petitioner.

Allen, Smith & Neal, Robert L. Maddox and Percy Foreman, all of Houston, for respondent.

SIMPSON, Justice.

Guy Felder brought a damage suit against the Houston Transit Company in a district court of Harris County, growing out of injuries inflicted upon him by B. F. Goodson, one of the company's bus drivers. A jury found that when he assaulted Felder, Goodson was acting in the scope of his employment, and not in self-defense, and fixed Felder's damages at $1000.00. The district court entered a judgment for the transit company notwithstanding the verdict, on the ground that as a matter of law the company's agent was not acting within the scope of his employment in committing the assault; but the Court of Civil Appeals reversed that judgment and rendered one in favor of Felder. 203 S.W.2d 831.

It is undisputed that a car driven by Felder ran into the rear of a transit company bus, and that Goodson, the operator, left the bus, went to Felder's car, and struck him in the face with a money-changing box. Felder testified that Goodson came around to the rear of the bus, looked at the bumpers of the two vehicles, shouted something which Felder did not understand, and hit Felder as the latter was in the act of getting out of the car and before he had said a word. Goodson testified that he left his bus and went to get Felder's name and automobile license number, as it was his duty to do, that Felder refused to state his name, started reviling Goodson, got out of his car, laid his hand on Goodson's shoulder, and stopped him as Goodson was starting to the rear of the automobile to get its license number, and that he hit Felder "because," as Goodson put it, "of what he called me and laid his hands on me."

Under these circumstances, the transit company insists that as a matter of law Goodson was no longer acting within the scope of his employment when he struck Felder. But this is not a tenable position.

There is little difference between the testimony of Felder and Goodson about most of the controlling facts. It is undisputed that Goodson, in keeping with his duties, went to Felder's car to get certain information, and while thus about his master's business and before he had finished his mission, committed the assault in question. This assault was so closely connected with the performance of Goodson's duties as to prevent the conclusion as a matter of law that when he struck Felder he had ceased to act as the company's agent and had begun to act upon his own responsibility. Under these facts, this case is distinguishable from the following decisions relied upon by the company, in each of which it was held as a matter of law that the servant was not acting in furtherance of the master's business: Galveston, H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367; Home Telephone & Electric Co. v. Branton, Tex.Civ. App., 7 S.W.2d 627, affirmed, Tex.Com. App., 23 S.W.2d 294; National Life & Accident Ins. Co. v. Ringo, Tex.Civ.App., 137 S.W.2d 828, error refused.

The applicable rule in the situation here is well stated in Gulf, C. & S. F. Ry. Co. v. Cobb, Tex.Civ.App., 45 S.W.2d 323, 325, error dismissed, as follows: "In practically all jurisdictions, the law is now settled that a master is liable for the willful and malicious acts of his servant when done within the scope of his employment. Such acts are imputable to the master, under the doctrine of respondeat superior, and in accordance with the general principles that the master is liable for any act of the servant done within the scope of his employment, as well as for any act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as being one indivisible tort, which, for the purposes of the master's liability, takes its color and quality from the earlier act."

See, also, Galveston, H. & S. A. Ry. Co. v. Zantzinger, 93 Tex. 64, 53 S.W. 379, 47

L.R.A. 282, 77 Am.St.Rep. 829; Magnolia Petroleum Co. v. Guffey, 129 Tex. 293, 102 S.W.2d 408; Chicago, R. I. & G. Ry. Co. v. Carter, Tex.Com.App., 261 S.W. 135; Cameron Compress Co. v. Kubecka, Tex.Civ. App., 283 S.W. 285, error refused; Central Motor Co. v. Gallo, Tex.Civ.App., 94 S.W. 2d 821.

In the Cobb case, as well as in the authorities generally, the law is said to be that if the servant commits an assault solely because of his resentment of an insult, the master will not be liable. Now Goodson testified in effect that he struck Felder because the latter was reviling him; but, on the contrary, Felder denied that he said anything at all before the blow was struck and that his only act was to start to get out of the car. Accordingly, what motivated Goodson in striking Felder was for the jury to appraise, and its finding that the assault was committed within the course of Goodson's employment encompasses the conclusion that it was not one committed solely out of resentment or bad feeling.

The company insists that Pratley v. Sherwin-Williams Co., Tex.Civ.App., 56 S.W.2d 510 (no writ of error applied for), is exactly like the case at bar. That case announces the same general principles of law as are found in the foregoing authorities. There seems to be little difference in the cases as to what these principles are, but, as so often happens, the difficulty arises in applying them. We believe that the principles laid down in the Pratley case, when applied here, would result in a holding of liability, and that the Pratley case is distinguishable from this one on the facts. But if, as the company urges, the case cannot be so distinguished, we must decline to regard the decision as authoritative.

Incidental to its position that the assault was not committed within the...