St. Louis Southwestern Ry. Co. v. Hudson

• Decision Date: 02 August 1928
• Docket Number: (No. 3573.)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUDSON et ux.
• Court: Texas Court of Appeals

9 S.W.2d 511

ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUDSON et ux.

(No. 3573.)

Court of Civil Appeals of Texas. Texarkana.

August 2, 1928.

Rehearing Denied August 3, 1928.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Action by W. H. and Mrs. Rosa Hudson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals. Affirmed.

October 7, 1922, appellees' son, Clayton Hudson, was shot and killed by L. W. Pearce, a Texas ranger engaged in guarding employees and property of appellant's during what was commonly known as the "railway shopmen's strike." On the theory that Pearce was acting as appellant's employee at the time, and that appellant therefore was liable to them in damages for the death of their son, appellees sued and recovered judgment against appellant. On an appeal prosecuted by appellant, the judgment was reversed by this court on the ground that it appeared Pearce was acting as a public officer and not as appellant's employee at the time he killed appellees' son, and judgment was rendered here that appellees take nothing by their suit against appellant. See 286 S. W. 766. The Supreme Court having granted appellees' application for a writ of error and referred the cause to the Commission of Appeals, said Commission reversed the judgment of this court (see 293 S. W. 811 and 295 S. W. 577), and the cause was remanded to the court below for a new trial. Appellees alleged in the petition on which the last trial was had that appellant employed Pearce and other rangers to protect its property and to prevent strikers from stationing and maintaining "pickets" in the vicinity of its shop grounds, from interfering with its employees, and from dissuading persons who thought of doing so from working for it; that Clayton Hudson was stationed in a public street and acting within his rights as a picket at the time he was killed; that in killing the said Clayton Hudson, Pearce acted "wrongfully and negligently within the actual and the apparent scope of his employment" by appellant; that said Clayton Hudson's death "was directly and proximately caused" by said wrongful act and negligence of appellant's servant Pearce, and "by his unfitness for the service in which he was employed" by appellant; that in killing said Clayton Hudson said Pearce "was not acting in any official capacity, or in the performance of any official duty, or in the execution or enforcement of any law"—and then alleged as follows:

"The said L. W. Pearce was, at the time of said killing, and had been for a long time prior thereto, a violent, dangerous, overbearing, and brutal man, who regarded lightly the taking of human life, and was likely at any time to shoot and kill or otherwise seriously injure the deceased or some other of said strikers unlawfully and wholly without justification, by reason of which disposition and characteristic he was wholly unsuited and unfit for the service in which he was employed by the defendant company, as aforesaid, and wholly unfit for the said service in which the defendant caused and permitted him to be employed at and about its premises. Besides all this, the general reputation of the said L. W. Pearce, as being a violent, brutal, and dangerous man, was and long had been exceedingly bad, at the time of said killing, throughout the city of Tyler and in the portion thereof where the defendant company's said shop grounds were located and its officers and agents operated as such, all of which qualities, characteristics, unfitness, and general reputation of said L. W. Pearce the defendant company, its officers and agents, well knew, and would have known by exercising ordinary care, at the time of and long before said killing, in ample time before it occurred to have avoided the killing of deceased by discharging said Pearce from the defendant company's service and causing him to be discharged from the said employment in which he was engaged, which the defendant company and its agents could and would have done by exercising ordinary or reasonable care before the time of said killing, but the defendant company, its officers and agents, negligently employed the said L. W. Pearce in the defendant's said service, and negligently caused and permitted him to be retained in said employment, and negligently caused and permitted him to be employed in said service, and negligently caused and permitted him to be stationed with a loaded gun upon and in the vicinity of the defendant's said shop grounds at the time when and place where the said strikers were lawfully maintaining their pickets, including the deceased, during the said strike, and where the said Pearce as such armed guard was likely at any time to encounter the deceased or other picket of the strikers, and was likely at any time to wrongfully, unlawfully, and negligently kill or seriously injure any of them, including the deceased, all of which the defendant, its officers and agents well knew, and would have known by exercising ordinary care, at the time of and long before said killing, in ample time to avoid or prevent the same by discharging said Pearce or causing him to be discharged from said service before the killing, which the defendant, its officers and agents, could and would have done by exercising ordinary care, which in all of said circumstances it was their duty to do. A direct and proximate cause of Eugene C. Hudson's death was the aforesaid unlawful, wrongful, and negligent act of said L. W. Pearce, in the defendant company's said service, in shooting the deceased as already stated. A direct and proximate cause of decedent's death was the negligence of the defendant company in employing said Pearce and in causing or permitting him to be stationed upon or near its said premises, as an armed guard, when he was a violent and dangerous man, wholly unfit for said service, and when his general reputation was that of a violent and dangerous man, and when the defendant, its officers and agents, well knew his said qualities and his said general reputation, and would have known the same by exercising ordinary care, at the time of and before said killing."

Special issues and certain instructions submitted by the court to the jury, and the jury's answers to the questions presenting the issues, are stated below:

"Question 1: Was L. W. Pearce an employee of the defendant company on the occasion and at the time Hudson was killed? In connection with question 1, I instruct you that the term `employee' as herein used means a person acting for or rendering service to another, for pay, by his or its authority, and under his or its direction or control; and, if you find from a preponderance of the evidence that L. W. Pearce, prior to and until the killing of Hudson, engaged in guarding the property and employees of the defendant company to prevent persons from entering the company's premises without its consent, and to protect the company's employees from interference, and that such services, if any, of Pearce, were for the benefit and interest of defendant, and were performed under the direction of defendant's officials and agents for compensation paid by the company, then you will answer the first question `Yes,' although you may find from the evidence that at the time of rendering such service Pearce was a ranger; but, unless you find as above stated, you will answer said question `No.' Answer: Yes.

"Question 2: Was L. W. Pearce, on the occasion and at the time he killed Clayton Hudson, acting within the scope of his employment, if any, by the defendant company? In connection with question 2, I instruct you as follows: If you find from a preponderance of the evidence that on the occasion and at the time of the killing Pearce was employed by the defendant company to guard its shop grounds from intrusion and protect its employees from interference, and that he was performing this service at that time, and that in killing Hudson he did not act from or out of said service, if any, or perpetrate a mere personal design of his own, but was furthering and promoting the interests of said defendant in the course of said employment, if any, and that the killing occurred in the course of his said service, if any, to the defendant company, and that the altercation which accompanied or resulted in the killing arose out of the performance by Pearce of his said service, if any, to the defendant company, and that the killing occurred in the course of an uninterrupted continuation of such altercation, then you will answer said question 2 `Yes;' but, unless you find as above stated, then you will answer said question `No.' Answer: Yes.

"Question 3: Was the killing of Clayton Hudson by L. W. Pearce a wrongful act? Answer: Yes.

"Question 4: Was L. W. Pearce a person unfit for the service, if any, he was employed, if he was, by the defendant to perform? Answer: Yes.

"Question 5: Would the defendant company, its officers and agents, by exercising ordinary care, have ascertained before the killing of Hudson that Pearce was an unfit person (if you find he was) for the service, if any, in which he was employed, if he was, by the defendant company at the time of the killing? Answer: Yes.

"Question 6: Was such unfitness, if any you find in answering question 4, of L. W....