San Angelo Water, Light & Power Co. v. Baugh

• Decision Date: 09 March 1925
• Docket Number: (No. 6837.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 270 S.W. 1101
• Parties: SAN ANGELO WATER, LIGHT & POWER CO. et al. v. BAUGH.
• Court: Texas Court of Appeals

270 S.W. 1101

SAN ANGELO WATER, LIGHT & POWER CO. et al. v. BAUGH.

(No. 6837.)^*

Court of Civil Appeals of Texas. Austin.

March 9, 1925.

Rehearing Denied April 1, 1925.

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

Action by B. E. Baugh against the San Angelo Water, Light & Power Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Wright & Harris, of San Angelo, for appellants.

Hill, Neill & Hill, of San Angelo, for appellee.

BLAIR, J.

Appellee, B. E. Baugh, sued appellants, San Angelo Water, Light & Power Company and Texas Electric & Power Company, corporations, charging them jointly and severally with negligently permitting a dangerous, excessive, and deadly quantity of electricity, generated by them, to escape and enter appellee's place of employment at the switchboard of the San Angelo Telephone Company, at Miles, Tex., alleging that the electricity came onto the telephone apparatus and thence into his body, causing him painful, serious, and permanent bodily injuries, to his damage in the sum of $7,500.

Appellants' answer consisted of a general demurrer, a general denial, a plea of contributory negligence, and a plea of assumed risk.

The case was tried to a jury upon special issues, and judgment was rendered by the court for appellee for $4,500, upon their answers to the special issues submitted; hence this appeal.

Appellants' first proposition complains of the admission of the testimony of witness Palmer that appellee "did not seem for ever so long to be as jolly and good natured as before the accident"; the specific objection being that the testimony did not tend to prove that appellee had received an electric shock, or that he had suffered any permanent or serious injury. The whole of Palmer's testimony in this connection is that he was present when appellee received his injury, and from his actions it looked like he was suffering; that he had occasion to see appellee almost every day for several years before and since the accident, and that "he did not seem for ever so long to be as jolly and good natured as before the accident." The general rule as to the admission of nonexpert testimony of this character is as follows:

"A nonexpert witness `may state the apparent physical condition of a man, * * * or as to what are more distinctly inferences from animate bodily phenomena, as the existence of a state of apparent sickness or disease. Such an observer may also state a change in apparent condition, whether the change is from sickness to health, or from health to sickness, or from bad to worse, or from worse to better. He may also infer and state that a person's ability to help himself or his faculties or the use of his limbs or other parts of his body, or his earning capacity has or has not been impaired.' 17 Cyc. 87." Yeatts v. St. Louis Swr. Ry. Co. of Tex. (Tex. Civ. App.) 184 S. W. 638; G. H. & S. A. Ry. Co. v. White (Tex. Civ. App.) 216 S. W. 265; Tex. Midland R. R. Co. v. Ritchey, 49 Tex. Civ. App. 409, 108 S. W. 732; Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W. 455; Texas-Mexican Ry. Co. v. Creekmore (Tex. Civ. App.) 204 S. W. 682.

In view of this broad general rule concerning the character of testimony complained of, we do not feel warranted in holding the admission of it erroneous. We think the testimony comes within the rule announced by our courts which permits a nonexpert witness to give his opinion on questions of apparent conditions of the body or mind, sickness, or health of a person whom he has associated with both before and after an injury in order to give force and meaning to the facts detailed upon which he bases the opinion. The testimony in the instant case detailed the facts that witness had associated with appellee for several years before and after the accident, and that he did not seem so jolly or good natured since the accident as before, which facts tend to show some ill effects of the electrical shock upon appellee's physical being, manner, or bearing and is admissible. Cunningham v. Neal, supra, and cases there cited. The fact that it does not tend to show that appellee received an electrical shock is immaterial since that fact is otherwise established.

Appellants' second and third propositions complain of the admission of certain testimony in the nature of an admission against interest. John Y. Rust, president and general manager of the San Angelo Telephone Company, by whom appellee was employed, testified on direct examination that appellants paid the telephone company for the damages done to the switchboard at Miles, Tex., at the time appellee was injured. On cross-examination he explained that the payment was made substantially as follows: The appellants and the telephone company ran current monthly accounts with each other. The bill for the damages to the switchboard at Miles, Tex., was $77.97, and was submitted to appellants at their office in San Angelo, Tex., in November, 1923, but not paid at that time; that in the months of February and March, 1924, appellants' bills against the telephone company were $54.68 and $56.76, respectively, making a total of $111.14; that in March, 1924, witness paid appellants' cashier at their office in San Angelo the sum of $33.47, being the difference between appellants' bills for the months of February and March against the telephone company and the telephone company's bill against appellants for damages done to the switchboard at Miles, Tex., at the time appellee was injured; and that since said payment nothing has been said to the telephone company concerning its bill for damages thus paid by the cashier. Appellants' secretary testified that he received the bill when originally presented, and that he passed it to Mr. Treadwell, appellants' general manager, who refused to O. K. it at that time, and that the San Angelo Telephone Company was never credited with said sum on appellants' books. The specific complaint for the admission of this testimony and to the refusal of the court to exclude it upon motion made at the time is that no one authorized by the corporations was shown to have consented to the payment, and that the cashier is not such person as would have the authority to bind the corporation in any wise. As we interpret the record, appellee's purpose in introducing this testimony was that it tends to show that appellants recognized a liability for the damages occasioned by the negligent act here complained of, and from this necessarily also tends to show that appellants did the act which caused the liability, and for such purposes it is well settled that this character of testimony is admissible. Ry. Co. v. Hertzig, 3 Tex. Civ. App. 296, 22 S. W. 1013; Ry. Co. v. Commerce Union Ins. Co. of London, England (Tex. Civ. App.) 137 S. W. 401; Ry. Co. v. Thomas (Tex. Civ. App.) 167 S. W. 785; Ry. Co. v. Kellerman, 39 Tex. Civ. App. 274, 87 S. W. 401; German Ins. Co. v. Luckett, 12 Tex. Civ. App. 139, 34 S. W. 173; Ry. Co. v. William Land, 3 Willson, Civ. Cas. Ct. App. § 50.

Appellants do not dispute this proposition of law, but insist that the burden was on appellee to show that the cashier acted in the matter upon the authority of appellants when receiving the balance between the accounts, in settlement of the claim for damages, and that the facts show that the said cashier had no such authority. We do not sustain this contention. If, under the above-stated facts, there exists for determination the question of the authority of the cashier to act in this case, we think that authority is established. The cashier in this case was the appellants' agent, who had charge of the collection of accounts due and of the payment of debts owing in the regular course of the business. Rust testified that he never heard the name of N. Y. Company in the matter, unless the cashier said he would take it up with the company; that the cashier accepted the balance between the accounts in settlement at a later date; and that he heard no more about the bill for damages.

An agent's acts within the scope of his apparent authority in dealing with innocent third persons will bind the principal for whom he acts, although the act may not be authorized and in violation of private instructions. Merriman v. Fulton, 29 Tex. 97; Ry. v. Hume, 87 Tex. 211, 27 S. W. 110; Hull v. Ry. Co., 66 Tex. 619, 2 S. W. 831; McAlpin v. Ziller, 17 Tex. 508; Gray v. Lumpkin (Tex. Civ. App.) 159 S. W. 880; 2 C. J. 570, 571, § 211, cases cited notes 31 and 32. Neither will a principal be permitted to prove the agent's authority was in fact less extensive than that with which he was apparently clothed. Rosenberg v. Bank (Tex. Civ. App.) 27 S. W. 897; 21 Ruling Case Law, 856. It is also well settled that the jury are not bound by the testimony of the agent, but may consider all other facts and acts of the agent, even though they be contrary to his testimony. Majors v. Goodrich (Tex. Civ. App.) 54 S. W. 919. Appellants made no request that the question of agency be explained to the jury. So we are of the view that no error is presented because of the admission of this testimony. But aside from this question we are also of the opinion that the question here presented is, not whether the agent had the authority to make the admission against his principals, but is whether the principals by the act of payment through their duly appointed agent tends to show that they recognized a liability for the damages, and that the principals did the act which caused the liability. Rust's testimony is not disputed that he made the settlement payment with appellants' cashier, and that no demand had ever been made by appellants for a return of the money. Appellants' secretary stated that, although he did not have charge of the particular books in question, he happened to know that that balance still remains charged to the telephone company. The books in question were not introduced in evidence. The jury may have concluded under...