Medlin Milling Co. v. Boutwell

• Decision Date: 08 February 1911
• Citation: 133 S.W. 1042
• Parties: MEDLIN MILLING CO. v. BOUTWELL.
• Court: Texas Supreme Court

133 S.W. 1042

MEDLIN MILLING CO. v. BOUTWELL.

Supreme Court of Texas.

February 8, 1911.

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

Action by E. M. Boutwell against the Medlin Milling Company. From a judgment in favor of plaintiff (122 S. W. 442), defendant brings error. Reversed and rendered.

J. T. Jones, for plaintiff in error. J. P. Copeland, J. P. Yates, and H. L. Carpenter, for defendant in error.

WILLIAMS, J.

This writ of error is prosecuted from the judgment of the Court of Civil Appeals affirming that of the district court in favor of defendant in error (plaintiff) against plaintiff in error (defendant) for damages for a personal injury inflicted on the plaintiff, a new employé of the defendant, by its other employés while attempting, in sport, to lay him across a barrel for the purpose of paddling him, a process which they called the "initiation" into the service. The defendant is a milling corporation, and at the time in question and for years before had a president, general manager, foremen, and other employés and servants. The custom of "initiating" all new officers and employés from the president to the lowest, in the manner indicated, which had commenced several years before plaintiff's entrance into the service, seems to have been observed with reference to all with perfect impartiality; and it is, perhaps, needless to add that they all knew of it. About a week after plaintiff's employment, several of the employés, including one of the foremen, attempted to subject him to the process, and a struggle followed in which he received the injuries of which he complains.

These seem to us to be all of the facts to be taken into consideration in reaching a decision, and we can discover in them no basis for legal liability on the part of the defendant. The defendant was held responsible for the assault committed by persons in its service because the practice had been pursued with the knowledge and acquiescence of those who were its officers and managers, which fact was held to justify the finding that defendant had authorized the assault. But what, we may ask, as such officers and managers, had they to do with the custom? It was a practice of the men who happened to be officers, or employés, of the corporation in an affair of their own, and not in or about any business of that corporation. Officers as well as employés were engaged in it as individuals and not as representatives of the company. Their knowledge of and acquiescence in it was simply that of men concerning the conduct of persons pursuing exclusively their personal ends. About a matter of that kind they were wholly without authority to act for or bind their principal. It is in the assumption that the conduct of the officers with reference to such a matter is to be treated as that of the corporation the fallacy lies. Such a proposition is true only when the officer acts or fails to act in some business of the corporation, the conduct of which lies within the scope of his authority and in which he is...