McMurrey Corporation v. Yawn, No. 5622.

• Court: Court of Appeals of Texas
• Writing for the Court: Hall
• Citation: 143 S.W.2d 664
• Parties: McMURREY CORPORATION et al. v. YAWN et al.
• Docket Number: No. 5622.
• Decision Date: 16 August 1940

Page 664

143 S.W.2d 664 McMURREY CORPORATION et al.
v.
YAWN et al. No. 5622. Court of Civil Appeals of Texas. Texarkana. August 16, 1940. Rehearing Denied October 10, 1940.

Appeal from District Court, Rusk County; C. E. McGaw, Judge.

Suit by Addie Yawn, surviving wife, and others against the McMurrey Corporation and others for alleged wrongful death of Girardus H. Yawn. From a judgment for plaintiffs, the defendants appeal.

Reversed and remanded.

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W. M. Futch and Clifford L. Stone, both of Henderson, and F. W. Fischer, of Tyler, for appellants.

Jones & Jones, of Marshall, and Smith & West, of Henderson, for appellees.

HALL, Justice.

Addie Yawn, surviving wife, and the minor children of Girardus H. Yawn, appellees, instituted this suit against the McMurrey Corporation, the McMurrey Petroleum Corporation, the McMurrey Interests, the McMurrey Pipe Line Company, the McMurrey Refining Company, Marvin H. McMurrey, Jim McMurrey, and Lucille McMurrey, for damages occasioned by the alleged wrongful death of Girardus H. Yawn, hereinafter referred to as deceased. It was alleged that the McMurreys were partners, joint adventurers, or joint associates in the ownership and operation of certain oil properties located in Rusk County, among which was the oil lease known as the Pinkston lease, and that one Rudolph Loesewitz was employed by them to guard, supervise and manage said lease; that said Loesewitz as their agent and while acting within the scope or apparent scope of his authority as watchman, manager and operator of said lease, and not in his own self-defense, negligently and carelessly shot and killed deceased. In the alternative it was alleged that the killing of deceased was intentionally brought about by the conspiracy of the McMurreys acting by and through their agent, Loesewitz. All the McMurreys including the several companies answered denying partnership, and all except Jim McMurrey denied that Loesewitz was their employee or agent in any capacity. Jim McMurrey answered that after he purchased the Pinkston lease he employed Loesewitz to look after said lease "generally" and to flow the oil wells located thereon; that at the time Loesewitz killed deceased, he, Loesewitz, "was outside of his employment or the scope of his employment by this defendant; that said Rudolph Loesewitz, at the time of such killing, and immediately prior thereto, was acting in his own self-defense, for all of which this defendant is in no way liable for damages or any part of the damages sued for herein."

The record reflects that deceased operated and managed the Pinkston lease before it was purchased by Jim McMurrey. Shortly after its purchase he was discharged, and Loesewitz was employed in his stead. While deceased was working on the Pinkston lease he lived in a house located thereon. This house was purchased either by Jim McMurrey or some one for him, and was being moved on the day deceased was killed. Deceased had removed from the lease before his death. Loesewitz also lived in a house located on the lease about 200 or 300 feet from the house formerly occupied by deceased. After deceased had been discharged by appellant and before his death, some of the oil wells located on this lease had on two occasions been turned on at night, causing the tanks to overflow. Loesewitz thought that deceased was the party who turned on the wells and he so informed Jim McMurrey. On the day of the killing Loesewitz was informed that deceased was on the lease near the house where he had formerly lived. On receiving this information Loesewitz took his shotgun, went to where deceased was, and after speaking a few words to him shot and killed him. Loesewitz testified that threats by deceased to take his life had been, on two occasions, communicated to him; one on the night before, and the other a few minutes before the killing. Loesewitz also testified that, at the time of the killing, deceased by acts committed evidenced an intention to carry said threats into execution and that he shot him in self-defense. It later developed, however, that deceased was unarmed. The jury verdict upon special issues and the judgment rendered thereon were for appellees and against defendants Jim McMurrey, M. H. McMurrey, and the McMurrey Corporation, jointly and severally, who prosecute this appeal. The other defendants were dismissed from the case.

This action was brought under Article 4671, Sec. 1, R.C.S., by the dependents of deceased for damages for his alleged wrongful killing by Loesewitz. The evidence is undisputed that the killing of deceased was intentional and not the result of negligence. Self-defense was relied on as a justification for said killing. The court below charged the jury as follows:

"You are charged that by the term `wrongful' as used in Special Issue No. 1, means the use of a greater degree of force than was reasonable and necessary under the circumstances then existing.

"Now bearing in mind the foregoing definitions and instructions, you will answer

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the following special issues, to-wit: Special Issue No. 1:

"Do you find from a preponderance of the evidence that the action of Rudolph Loesewitz in shooting and killing the deceased, Girardus H. Yawn, was wrongful? Answer Yes or No."

Jury answer: "Yes."

By proposition No. 9 appellants challenge the correctness of this definition when applied to the facts and circumstances surrounding the defense of self-defense as shown by the testimony in the record. Appellants' proposition is: "In a civil suit to recover damages for the alleged wrongful death of the deceased, where the defendant's pleadings and evidence raise the issue that the deceased had made threats against the life of the defendant, which were communicated to the defendant, and that, by the demonstration made by the deceased, the defendant believed the deceased intended to carry out such threat, and, in defense of himself, he killed the deceased, it is error for the court to submit to the jury the bald question whether the action of the defendant in killing the deceased was...