Southland Greyhound Lines v. Matthews

• Decision Date: 16 July 1934
• Docket Number: No. 2430.,2430.
• Citation: 74 S.W.2d 713
• Parties: SOUTHLAND GREYHOUND LINES, Inc., v. MATTHEWS.
• Court: Texas Court of Appeals

74 S.W.2d 713

SOUTHLAND GREYHOUND LINES, Inc., v. MATTHEWS.

No. 2430.

Court of Civil Appeals of Texas. Beaumont.

July 16, 1934.

Rehearing Denied October 10, 1934.

Appeal from District Court, Orange County; G. E. Richardson, Judge.

Action by Anthony Matthews against the Southland Greyhound Lines, Inc. Judgment for plaintiff, and defendant appeals.

Reversed and rendered in part, and in part reversed and remanded.

Barnes & Barnes, of Beaumont, for appellant.

K. W. Stephenson and H. M. Kinard, both of Orange, for appellee.

COMBS, Justice.

Appellee was plaintiff and appellant defendant in the court below and we will thus designate the parties.

This suit was brought by plaintiff for damages to his person and to his automobile proximately resulting from a collision between his automobile and one of defendant's passenger busses. The collision occurred on the Old Spanish Trail, a paved highway, about eight miles west of Orange, Tex., on the evening of February 29, 1932, while plaintiff, Anthony Matthews, and his nephew, Isaiah Jacquot, were riding in plaintiff's automobile, the nephew driving, going from Orange to Beaumont. The bus was traveling toward Orange. The jury convicted defendant of actionable negligence at the time and place of the collision on the following issues: (a) The operator of the bus failed to keep a proper lookout for persons or cars driving upon the highway; (b) immediately preceding the collision "the defendant's bus in question failed to travel upon the right hand side of such highway"; (c) the bus was being operated at a rate of speed in excess of 15 miles per hour "at the time the same attempted to pass the car in which plaintiff was riding"; (d) taking into consideration all the facts and circumstances in evidence, the bus was being operated at a rate of speed so excessive as to endanger "the life of plaintiff or the lives of persons traveling upon said highway"; (e) the operator of the bus "failed to keep and hold the same under control." Other findings by the jury acquitted plaintiff of contributory negligence on the issues submitted; and the jury found further that the collision was not the result of an unavoidable accident. The jury awarded plaintiff actual damages in the sum of $15,000 and exemplary damages in the sum of $5,000, for which sums judgment was duly entered in plaintiff's favor. Defendant has duly prosecuted its appeal to this court.

On the facts of this case we sustain defendant's proposition that it was not liable to plaintiff for exemplary damages. The facts take this case out of any rule recognized by the Texas courts which allows recovery of exemplary damages against a corporation. These facts are: Defendant's liability is predicated upon the negligence of the bus driver, and the bus driver was not charged with or convicted of the breach of any nondelegable duty owed by the defendant. And there was no evidence that the bus driver had authority to "hire" or to "fire" or to make rules for the operation of the bus, or that he was in general charge of that department of defendant's business in which he was employed. Therefore, he was not a vice principal or the alter ego of the defendant, but merely a servant or ordinary employee. There was no evidence that the bus driver was an inefficient servant, or that the defendant was guilty of negligence in any respect in retaining him in its employment, or that the defendant ordered or directed the driver to perform any of the acts of negligence found against him by the jury, or that it ratified such acts of negligence.

The question of exemplary damages has recently been reviewed, substantially in all its essential elements by Mr. Chief Justice Cureton, speaking for our Supreme Court, in the following cases: Fort Worth Elevators Co. v. Russell, 70 S.W.(2d) 397, 406; Morton Salt Co. v. Wells, 70 S.W.(2d) 409; Southwestern Gas & Electric Co. v. Stanley, 70 S.W.(2d) 413.

In the Fort Worth Elevators Company Case, Judge Cureton, after reviewing a number of Texas cases, thus states the rule: "The Texas rule, reduced to its simplest terms, and applied to a case of gross neglect, means that the default for which punitive damages may be recovered must be that of the corporation, that the grossly negligent act must be the very act of the corporation itself; or, if the act is that of a mere servant or employee as such, then it must have been previously authorized or subsequently must be approved by the corporation. * * * The rule deducible, it seems to us, from the Texas authorities, is that exemplary damages are not recoverable against a corporation where the grossly negligent act involves only a breach of duty by a mere servant or employee as such, unless the act was previously authorized or was subsequently approved by the corporation."

On the facts of this case the conclusion necessarily follows that under the rule above quoted the defendant was not liable for exemplary damages for the gross negligence of the bus driver. The acts of negligence involved "only a breach of duty by a mere servant or employee as such." They were not the "very act of the corporation itself" because not committed by a corporate officer, vice principal, or alter ego of the defendant, nor with respect to any nondelegable duty. Nor were the acts of gross negligence made the act of the corporation either by previous authorization or by subsequent ratification of them. Nor is the defendant chargeable therewith upon the principle of having negligently retained in its employment the negligent employee.

In the cited cases Judge Cureton discussed every essential element of the question now before us, and it would be presumptuous for us to attempt here to add anything to what he said in those cases. We have no doubt that under the rule there announced and discussed plaintiff's right of recovery against defendant is limited to compensatory damages. It follows that in so far as the judgment of the trial court awards plaintiff exemplary damages, the judgment is reversed and judgment here rendered for defendant.

Defendant assigns as error a remark of the trial court made in the presence of the jury during the progress of the trial, in connection with a ruling excluding certain evidence. The assignment is based on certain proceedings which occurred while the plaintiff, a negro, was on the witness stand and being cross-examined by defendant's counsel. We quote from the statement of facts:

"Q. On June 3rd, 1932, you said you would be willing for us to take you to a doctor and have an examination made of you, didn't you? A. No sir.

"Q. You didn't answer that question at that time, `Yes sir'? A. I did, but not about this matter.

"(Defendant offers in evidence the question on pages 11 and 12, line 28, of the testimony taken on June 3rd, 1932 of this witness, which is as follows:

"`Q. Anthony, would you be willing for me to take you to a doctor for an examination today? Your answer was, Yes sir.'

"Plaintiff objects for the reason that it is not a proper subject for impeachment of the witness, and is wholly immaterial and irrelevant. Objection sustained. To which defendant excepts for the reason that it is offered for the purpose of impeaching the witness and for the purpose of disclosing the facts, and to show that the witness is not willing to disclose the facts in the case. Objection overruled. By the Court: `You did not make that statement for any purpose except to prejudice the jury against this negro.' Defendant excepted.)"

We sustain defendant's proposition that the remark by the court, "You did not make that statement for any purpose except to prejudice the jury against this negro," constituted reversible error. It is the general rule in this state that the trial court in ruling on the admissibility of evidence cannot make "any remark or comment as of criticism of a party or his counsel for offering evidence which the court excludes." Speer's Law of Special Issues in Texas, p. 488. The remarks of the court complained of fall within the condemnation of the rule...