St. Louis Southwestern Ry. Co. v. Hudson

• Decision Date: 05 June 1929
• Docket Number: (No. 1261-5291.)
• Citation: 17 S.W.2d 793
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HUDSON et ux.
• Court: Texas Supreme Court

Page 793

17 S.W.2d 793

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

(No. 1261-5291.)

Commission of Appeals of Texas, Section A.

June 5, 1929.

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

Action by W. H. and Mrs. Rosa Hudson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs was affirmed by the Court of Civil Appeals , and defendant brings error. Judgments of Court of Civil Appeals and of district court reversed, and cause remanded for new trial.

See, also, 293 S. W. 811 and 295 S. W. 577.

E. B. Perkins, of Dallas, and Marsh & McIlwaine, Bryan Marsh, and H. B. Marsh, all of Tyler, for plaintiff in error.

Edwards & Hughes and Cone Johnson, all of Tyler, for defendants in error.

CRITZ, J.

This suit was filed in the district court of Smith county, Tex., by W. H. Hudson and his wife, Rosa Hudson, defendants in error, who will, for convenience, be herein designated plaintiffs, against St. Louis Southwestern Railway Company of Texas, plaintiff in error, who will, for convenience, be designated defendant, to recover damages alleged to have been sustained by plaintiffs in virtue of their son, Clayton Hudson, having been shot and killed by one L. W. Pearce, a Texas ranger. The grounds upon which plaintiffs seek recovery are:

(a) That Pearce, at the time he killed Clayton Hudson, was in the employ of defendant; that such killing was wrongful; and that at the time Pearce was acting within the scope of his employment by defendant.

(b) That Pearce was a person unfit for the service that he was employed by defendant to perform; that defendant knew, or by the exercise of ordinary care could and should have known, that Pearce was an unfit person to perform such service; and that defendant was guilty of negligence in permitting said Pearce to remain in its service. In this connection it was alleged by plaintiffs that Pearce and other rangers were employed by defendant to protect its property and to prevent strikers from stationing and maintaining "pickets" around and near its shops, etc., and from interfering with its employees, and from dissuading persons from working for defendant. It is also alleged by the plaintiffs that Clayton Hudson was stationed in a public street in the city of Tyler, 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 apparent scope of his employment by defendant; and that Clayton Hudson's death was the direct and proximate result of the negligence of defendant and wrongful acts of Pearce.

The plaintiffs then specifically and particularly pleaded the unfitness of Pearce, and his bad character and reputation, and defendant's knowledge thereof, in the following language:

"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 shopgrounds 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 shopgrounds 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."

The defendant answered by general demurrer, and specially excepted to that part of the petition setting up the bad character of Pearce and defendant's alleged knowledge thereof, etc.

The defendant further pleaded:

"(a) that at the time of the killing Pearce was a duly appointed and acting ranger in the service of the State of Texas, and that he, with a number of other rangers had been ordered by the governor of Texas to guard appellant's shop grounds to prevent certain of its former employees, including decedent, who were then out on a strike, from invading or trespassing upon appellant's said property, and from injuring and interfering with its employees; that the said rangers, including Pearce, were under the command and subject alone to the orders of H. P. Brady, a Texas Ranger, who was then acting as a captain of the force of rangers that had been stationed in appellant's shop grounds for the purpose of preventing the strikers from doing the things above set out; that appellant had no authority to control, or direct Pearce in the discharge of his duties as a ranger, and never at any time, ordered, directed or commanded him to prevent deceased and the other strikers from picketing its shop grounds, or interfering with them in any way; that Pearce was not acting as a servant, employee, or agent of the defendant, but was acting as a ranger in virtue of his appointment and qualification as such, and appellant was in no way responsible for him having shot and killed the son of appellees and (b) that in the event it should be held that Pearce was an employee of appellant, appellees ought not to recover against it because it never ordered, commanded or directed Pearce, or any of the other rangers to interfere with, molest or prevent plaintiff's son, and the other strikers from picketing its shop grounds; that the sole and only purpose of the rangers in guarding its shop grounds was to prevent the strikers from invading its property or trespassing thereon; that at the time Pearce shot and killed appellees' son decedent was not in the act of invading appellant's shop grounds and was not trespassing thereon and the act of Pearce in shooting and killing him was not done in the furtherance of appellant's business and was not within the scope of the authority of the said Pearce, real or apparent, as a guard of appellant's shop grounds, and that appellant was not responsible for Pearce's act in shooting and killing decedent."

The trial court overruled all general and special exceptions of the defendant, and the case was submitted to a jury on special issues. The questions submitted germane to this opinion are as follows:

"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 `employé' 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...