Humbert v. Adams

• Decision Date: 23 April 1965
• Docket Number: No. 16485,16485
• Citation: 390 S.W.2d 857
• Parties: Ellis S. HUMBERT et al., Appellants, v. R. N ADAMS, d/b/a R. N. Adams Construction Company, Appellee.
• Court: Texas Court of Appeals

Page 857

390 S.W.2d 857

Ellis S. HUMBERT et al., Appellants, v. R. N ADAMS, d/b/a R. N. Adams Construction Company, Appellee.

No. 16485.

Court of Civil Appeals of Texas, Dallas.

April 23, 1965.

Rehearing Denied May 21, 1965.

Earl Luna, Dallas, Waggoner Carr, Atty. Gen., and I Raymond Williams, Jr., Asst. Atty. Gen., Austin, for appellants.

Fred T. Porter, Dallas, for appellee.

WILLIAMS, Justice .

Appeal from an order sustaining motion for summary judgment. We give the parties the same designations as in the trial court.

This suit was originally instituted in the district court of Dallas County, Texas by Ellis S. Humbert against T. L. James & Company, Inc., and R. N. Adams, doing business as R. N. Adams Construction Company seeking damages for personal injuries alleged to have been sustained by Humbert as a result of a personal encounter with one John Kelly Sears, alleged to be an employee of both defendants, and acting at the time of such altercation in the course and scope of his employment. John Kelly Sears was never made a party defendant, individually, plaintiff's sole contention of liability against defendants being that of respondeat superior. Humbert alleged that he was an inspector, employed by the Texas State Highway Department; that the defendants had a contract with the State of Texas for the construction of improvements on Highway No. 175; that Sears was employed by defendants as a supervisor on the job and that the assault and battery took place at the scene of the construction work. R. N. Adams filed his plea of privilege alleging that venue as to him should be transferred to Kaufman County, Texas where he resided. The plea of privilege was sustained by the trial court and appealed to this court. In Humbert, Appellant v. R. N. Adams, d/b/a R. N. Adams Construction Company, et al., Appellees, 361 S.W.2d 458 we carefully review the testimony given at such venue hearing (such testimony being set out in our opinion, and referred to herein) and speaking through Chief Justice Dixon, arrived at the conclusion that: 'The assault arose out of a personal resentment on Sears' part against Humbert. Sears was not in the course of his employment with Adams when the assault was committed. If there was any connection at all between the assault and the alleged failure of some of the materials not 'passing the specifications', that connection, as Humbert himself said, was 'something way down the line.' It was too remote to be considered a part of the assault.' We therefore affirmed the trial court's judgment and the cause was removed to Kaufman County, Texas. After the transfer plaintiff filed his amended petition wherein he named R. N. Adams only as defendant.

R. N. Adams filed his motion for summary judgment in the District Court of Kaufman County, supporting same with transcript of the testimony of Humbert given at the plea of privilege hearing and also the oral deposition of John Kelly Sears, Adams' employee. Humbert filed his answer to Adams' motion and attached thereto his affidavit which added nothing to his testimony previously given on the venue hearing. According to the briefs the State of Texas and the Texas State Highway Department both intervened in the suit (although there is no plea of intervention shown in the transcrip) claiming a subrogation right to recover, in the event Humbert recovered, for certain compensation benefits and hospital expenses incurred by the State of Texas and the Texas State Highway Department, the employer of Humbert. Intervenors also filed an answer to the motion for summary judgment and attached thereto an affidavit of one R. O. Henley, resident engineer in charge of construction of the highway where the altercation occurred. He stated that Mr. Sears was directly in charge of the flexible base on the highway project; that he was an employee of R. N. Adams Company and worked directly under R. N. Adams as far as policy matters were concerned. The trial court heard the motion for summary judgment and sustained same thereby rendering judgment that plaintiff and intervenors take nothing against the defendant.

OPINION

The sole question presented by this appeal is whether the affidavits, testimony and deposition raised a genuine issue of fact vel non as to whether John Kelly Sears was acting within the course and scope of his employment for R. N. Adams at the time he committed the assault on Humbert. We have already held that the testimony of Humbert given at the plea of privilege hearing in Dallas County demonstrated that he was not acting within the course and scope of his employment for Adams. However, the trial court in Kaufman County had before it additional facts in the form of Sears' deposition and the affidavits of Humbert and Henley when the motion for summary judgment was decided. Therefore, we must consider this additional evidence, as well as that heretofore studied, to determine whether same presents an issue of fact which should have been submitted to a jury.

Landmark rules govern us in our task of deciding the question presented by appeal from the summary judgment order. As we stated in Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534, if there are any doubts existing concerning the propriety of the granting of the motion for summary judgment such doubts must be resolved against the moving party. The movant has the burden to conclusively negative the existence of any genuine issue in regard to controlling facts. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, affirming this court in 243 S.W.2d 220.

The evidence relied upon by the district judge to sustain the motion for summary judgment is clear in all material respects. R. N. Adams had a contract with the Texas State Highway Department to do certain highway construction work. John Kelly Sears was general superintendent for Mr. Adams on the job in question. It was his duty to see that the work was carried on according to the plans of the Highway Department. Gene Kennedy was his immediate superior. Ellis S. Humbert was the inspector for the State Highway Department on the job. Sears had known Humbert for several years. The two men had never had any difficulties. On November 17, 1960 Sears had a conversation with Humbert pertaining to the gradation of the flexible base. Humbert had complained about the gradation, meaning the size of the different materials used in the base. Humbert told Sears that there was an error in gradations and suggested that Sears get in touch with Mr. Henley, the resident engineer on the job, and talk with him about it and also suggested that Sears shut down delivery of materials to the job until the matter could be corrected. There was no animosity between the two men at all on this occasion. Following the conversation Sears left and talked to Mr. Henley. While he was talking to Henley, Humbert approached and the three of them discussed the problem and decided to continue the haul temporarily. Sears agreed to correct the gradation problem. Sears then left and went and talked to Mr. Kennedy about the problem. During this conversation Kennedy told Sears that Mr. Humbert had already talked to him and had made reference to the fact that Sears had talked to Henley and related that Humbert had said: 'Well, I'd better go down there, he will go down there and tell him a bunch of damn lies.' Sears left Mr. Kennedy and some time later Mr. Humbert approached him. Sears asked Humbert why he made that remark to Mr. Kennedy and Humbert said: 'Well, he's just like you, he's a god damn liar. I didn't say it.' Thereupon Sears hit Humbert with his fist and jumped on top of him. Humbert also hit Sears. This altercation took place on the job site about two and a half hours after the initial conversation concerning the gradation. As a result of the fight Humbert sustained serious personal injuries. When asked to tell what led up to the fight Sears said: 'Well, he called me a god damn liar.' 'Question: Did he tell you that to your face?' 'Answer: Yes.' When Humbert was asked by the Court: 'What were you and Mr. Sears fussing about; what was the dispute or fight about?' Humbert responded: 'He seemed to think that I had called him a liar.' Again Humbert was asked: 'Well, I understood you to say that the fight...