Texas & P. Ry. Co. v. Hagenloh

• Decision Date: 13 June 1951
• Docket Number: No. 4789,4789
• Citation: 241 S.W.2d 669
• Parties: TEXAS & P. RY. CO. v. HAGENLOH.
• Court: Texas Court of Appeals

Page 669

241 S.W.2d 669

TEXAS & P. RY. CO. v. HAGENLOH.

No. 4789.

Court of Civil Appeals of Texas, El Paso.

June 13, 1951.

Rehearing Denied July 25, 1951.

Burges, Scott, Rasberry & Hulse, El Paso, for appellant.

John Paul Jones and Hildebrand, Bills & McLeod, Oakland, Cal., Carroll W. Smith, El Paso, for appellee.

McGILL, Justice.

Appellee recovered a judgment against appellant for damages alleged to have resulted from an assault made upon him by C. B. Houghland, a Special Officer employed by appellant, whose duty among others was to protect company property and to make investigations concerning and to recover missing and stolen property of passengers on appellant's trains. The assault is alleged to have occurred at about nine o'clock P. M. on July 27, 1947, at Toyah, Texas. It was alleged that the assault was made by Houghland while acting within the scope of his employment with appellant, and in furtherance of appellant's business. Trial was to a jury, which in answer to special issues found in substance that (1) at the time Houghland accosted appellee he did so in pursuance of one or more of his duties as agent of appellant; (2) that Houghland struck appellee without cause or provocation; (3) that appellee did not provoke or invite the assault; (4) that they did not find at the time of the altercation that Houghland was off duty and not performing any duties for appellant and (5) damages suffered by appellee as a consequence of the assault was $7,400. Judgment was rendered in accordance with these findings.

Appellant has presented twenty points 'propositions' on which this appeal is predicated. Appellant timely moved for an instructed verdict and for judgment non obstante and the gravamen of the complaint here is that the trial court erred in overruling these motions. It is earnestly insisted that there is no evidence to support the jury's finding that at the time Houghland accosted appellee he, Houghland, did so in pursuance of one or more of his duties as agent of appellant. The rule governing the trial court and this court in determining whether appellant's motions for an instructed verdic and judgment non obstante should have been granted is that enunciated by the Supreme Court in Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S. W. 1150. The motions should not have been granted. 'If, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff. * * *' In other words, in passing on this question 'It is our duty to disregard all conflicts in the testimony; to consider the evidence adduced in the case in the light most favorable to plaintiff, and to indulge in his favor every intendment reasonably deducible from the evidence.' James v. Missouri-Kansas Texas R. Co. of Texas, Tex.Civ.App., 182 S.W.2d 921, 922 Wr.Ref. This rule has been many times followed. Wilder v. Malone, Tex.Civ.App. 212 S.W.2d 938.

'The jury were the judges not only of the facts proved, but of the inferences to be drawn therefrom, provided such inferences were not unreasonable.' Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616, 618. Najera v. Great Atlantic and Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365; Blake v. Rogers, Tex.Civ.App., 237 S.W.2d 457.

With this rule in mind we shall accept appellee's version of the evidence on which he relies to sustain the findings above referred to substantially as stated in his brief-not the inferences therefrom. These statements are not challenged by appellant and are supported by the statement of facts, which we have carefully read. In this connection it is proper to say that appellee called C. B. Houghland to the stand as an adverse witness under Rule 182, Texas Rules of Civil Procedure, and claimed in the trial court and contends here that he is not bound by Houghland's testimony under the provisions of that Rule. Appellant contends that since Houghland had not been in its employ for approximately a year prior to the trial he was not an adverse witness within the purview of this rule, citing and relying on Dollahite-Levy Co. v. Phillips, Tex.Civ.App., 99 S.W.2d 688, (wr. dis.). We do not agree with appellant's contention. The cited case is distinguishable in that the witness in that case was not charged with having made an assault on the plaintiff, as here. It seems clear to us that such a witness is hostile and adverse under the rule, even though no longer employed by the corporate defendant.

The evidence on which appellee relies as outlined in his brief is here summarized: Appellee was employed by appellant in 1944 as a brakeman and continued in that capacity on different runs and under different assignments until the date of the assault; appellee's assignments were either as a brakeman on a freight run from El Paso to Toyah, Texas, or as a baggageman on a passenger run from El Paso to Big Spring, Texas. As a baggageman on the passenger run he had full charge of the mail and baggage while the train was en route and his duties consisted of routing the mail and baggage for different stations along the line and arranging for the forwarding of baggage beyond the terminals of his run. His responsibility over the mail and baggage ceased upon the train's reaching the terminal of his run when he left the baggage car.

C. B. Houghland had been a Special Agent employed by appellant since August 1945, and on July 27, 1947, and for some time prior thereto he had resided at Toyah, Texas, and was responsible for the area from El Paso to Big Spring, Texas. His duties as Special Agent consisted among other things of making investigations, searching for and recovering, if possible, lost or stolen property for his employer or shippers or passengers, occurring within his area of responsibility and called to his attention by his employer or learned of in the course of his employment. He was given a free hand as to his methods of investigation and procedure.

During the months of December, 1946 and January 1947 appellee was most of the time assigned to the passenger run from El Paso to Big Spring and return and was in charge of the baggage car. During the Christmas season of 1946 he first met Special Agent Houghland when he boarded his car and looked at the baggage and the men working in the baggage car and at the 'pigeon holes', which was a box setting against the side of the car where company mail and little packages were kept. Later, in January, 1947, Houghland would board the baggage car and go through a brief case in which appellee carried company papers and then started to go through his personal overnight bag in which he carried some extra clothing and his lunch. He continued this procedure on numerous occasions until some time in March, 1947. During that month certain baggage had been picked up in Pecos, Texas, routed for California. While the train was en route the conductor told appellee that the passenger had changed her mind and wanted the baggage consigned to El Paso, whereupon appellee made the baggage car arrangements for the transfer.

About a week after this incident Houghland boarded appellee's baggage car at Toyah and told appellee that this baggage was supposed to have contained jewelry, which was missing, and inquired of appellee as to his knowledge of same, inasmuch as appellee was the only one who handled the baggage en route. Appellee denied any knowledge of the missing jewelry, although he remembered the incident of the transfer of the baggage picked up at Pecos, as it was unusual. Appellee had never been notified by any company official that anything was missing from his car and he learned of the missing jewelry for the first time from Houghland.

Thereafter, Houghland continued going through appellee's baggage and personal effects on numerous occasions. Appellee complained to Mr. Bishop, Superintendent of Special Agents, and Houghland's immediate superior, who said he would look into the matter. In the meantime the periodic searching of his belongings continued.

About two weeks after appellee learned that the jewelry was missing, Houghland without prior notice came to his home with two members of the Federal Bureau of Investigation and asked to search through his home for the missing baggage. Appellee invited these men to look through his home, though they had no search warrant, but they refrained from doing so and left after requesting certain records which appellee was required to keep in connection with missing baggage, but he was unable to produce the record which they desired because he had sent his copy thereof to the company office.

The periodic searching of appellee's baggage car by Houghland continued into June, 1947, when appellee reported the matter to Mr. French, the Assistant Superintendent of the Railroad, telling him of the repeated searching of his car and personal belongings; of the visit to his home by Houghland with F. B. I. agents, and that he had reported the matter to Mr. Bishop, without avail. He requested a railroad investigation so that his status in the matter of the missing jewelry could be cleared up. Mr. French told him that it was the first he had heard of the matter and that he would look into it and let appellee know. Appellee heard nothing from French or Bishop and the periodic searching of his car continued.

Shortly thereafter the eastbound passenger train stopped at Monahans, Texas, and Houghland again boarded the train and searched through appellee's baggage car, the pigeon holes, the company brief case and started to look through appellee's personal suitcase. Appellee grabbed his suitcase and wouldn't let Houghland go through it, whereupon Houghland reported the incident to Mr. Bishop, who was at the time standing just outside the baggage car on the platform. Appellee told Mr. Bishop of the continuous search and that he...