Lytle v. Crescent News & Hotel Co.

• Citation: 66 S.W. 240
• Parties: LYTLE v. CRESCENT NEWS & HOTEL CO.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 11 December 1901
• Court: Court of Appeals of Texas

66 S.W. 240

LYTLE v. CRESCENT NEWS & HOTEL CO.¹

Court of Civil Appeals of Texas.

December 11, 1901.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by W. J. Lytle against the Crescent News & Hotel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Samuel Belden, Jr., and M. W. Davis, for appellant. Newton & Ward, for appellee.

FLY, J.

This is a suit for damages instituted by appellant against appellee, alleged to have arisen from the acts of an agent of appellee in charge of a certain lunch counter in Schulenburg, Tex. After hearing the evidence introduced by appellant, the court instructed a verdict for appellee. The grounds of recovery stated in the petition were that D. E. Rhodes, the servant of appellee, whilst acting within the scope of his employment, had negligently shot appellant, and that the character and disposition of said Rhodes was so vicious and dangerous as to render it dangerous for appellant to pursue his business in Schulenburg. The testimony established that appellant was a railway postal clerk, running between San Antonio and Houston, and some time in June, 1900, when the train reached Schulenburg, he went to a lunch counter conducted by D. E. Rhodes for appellee, to get something to eat. Rhodes handed him a piece of pie, and appellant gave him 50 cents, out of which to get the 5 cents for the pie. Just as appellant got the pie, the train bell rang, and he ran to catch the train without getting his change. The next day appellant was going west from Houston, and took his dinner in the dining room adjoining the lunch stand, and, after eating, went to the lunch stand, and asked Rhodes for the change he had left, and Rhodes said that appellant had gotten his change. Several days afterwards appellant went to the lunch stand, and, after eating, again demanded the 45 cents he had left. After talking for a while, appellant charged Rhodes with taking the money, and Rhodes, with an oath, told him he would "fix him," and started to get over the counter. Appellant started out, and when just outside the door applied a very opprobrious and insulting epithet to Rhodes, who then got a pistol and ran after appellant, and, as he was getting on the train, shot him in the leg. There was no testimony tending to show that Rhodes was of a violent or dangerous disposition, except that he shot appellant after he had charged him with theft and applied to him a vile epithet that always provokes intense resentment in this section of the country, and had invited him out to fight. It will be noted that the difficulty occurred several days after appellant lost his money, and after appellant had been waited on and paid for his lunch. Rhodes at the time was not engaged in any service for his master, and the quarrel arose over a matter in which appellee did not have the least interest, or with which it was at all connected. Rhodes was not acting in furtherance of the master's business, or for the accomplishment of the object for which he was employed. He was resenting insults heaped on him by appellant; and while the remote cause of the difficulty was a matter connected with the business of appellee, it was too remote to connect appellee with it. "When a recovery is sought of the master for an injury inflicted by his servant, the plaintiff must show that the servant did the wrong while acting within the scope of his employment." Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railroad Co. v. Cooper, 88 Tex. 607, 32 S. W. 517.

There is no error in the judgment, and it is affirmed.

On Motion for Rehearing.

(Jan. 22, 1902.)

It is contended by appellant that the servant of appellee was acting within the scope of his employment when he shot appellant. The general and inflexible rule controlling in all such cases as the present is, as stated in Wood, Mast. & S. § 279, that for all acts done by the servant under the express orders or direction of the master, as well as for all acts done in the execution of his master's...