Wells Fargo & Co. Express v. Sobel

• Decision Date: 02 February 1910
• Parties: WELLS FARGO & CO. EXPRESS v. SOBEL.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

125 S.W. 925

WELLS FARGO & CO. EXPRESS v. SOBEL.^†

Court of Civil Appeals of Texas.

February 2, 1910.

Rehearing Denied February 24, 1910.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by L. Sobel against Wells Fargo & Co. Express. Judgment for plaintiff, and defendant appeals. Affirmed.

Crook, Lord & Lawhon, for appellant. Rodman S. Cosby and A. D. Lipscomb, for appellee.

REESE, J. L.

Sobel instituted this action against Wells Fargo & Co. Express, a corporation, to recover $2,000 actual and $3,000 exemplary damages for an assault alleged to have been committed upon him by one D. J. Coleman an employé of defendant, while the said Coleman was engaged in the performance of his duties as such employé; the said employé then and there, in making such assault, acting within the scope of his duties as such. It was also alleged that after the assault had been committed defendant, with full knowledge of the circumstances, ratified the same. The defendant by way of answer urged a general demurrer and several special exceptions to the petition. The general demurrer and all the special exceptions but one were sustained, whereupon the plaintiff filed a trial amendment, and defendant by supplemental answer renewed its special exceptions to the petition as amended, which were overruled. Defendant also made general denial. Upon a trial without a jury, the court rendered judgment for plaintiff for $250 actual damages. From the judgment defendant appeals. The trial court filed conclusions of fact and law.

The first three assignments of error assail the ruling of the trial court in overruling several special exceptions to the petition. There is no merit in either of the assignments, nor the several propositions thereunder, and they are severally overruled.

The other assignments attack the judgment on the ground, generally, that the undisputed evidence shows that the man Coleman in making the assault upon appellee was not acting within the scope of his employment, as agent and servant of appellant, but independently, and in his own private quarrel, and that therefore appellant is not liable. By way of answer to these assignments, which we have concluded present no error, we here set out the conclusions of fact and law of the trial court, which are here adopted as our conclusions:

"The plaintiff, a merchant in the city of Beaumont, in the latter part of 1907 had a shipment of gloves to him from the wholesale house of Mason, Campbell & Co., at Poughkeepsie, N. Y., same coming into Beaumont through the defendant company, which is a corporation and operates as a common carrier of goods by rail, maintaining an office in the city of Beaumont, then under the superintendence of the witness Smith. When the goods arrived at the Beaumont office of defendant, they were sent to plaintiff's place of business by defendant's local delivery wagon. The package appearing to be in bad order, plaintiff declined to take them without their being checked up and compared with his bill received from the shipper. The driver for defendant carried them back to the office, as the rules of the company require such matters to be adjusted at the office. Later plaintiff went to defendant's office with the bill, and was referred to the `on hand' clerk, the witness Coleman. The gloves were counted by this clerk, two or more times, with varying results, sometimes finding more and sometimes less than called for by the bill, and plaintiff, who was present and saw the goods open, accepted them, saying that if there were only two or three pairs short he would make no complaint. At his shop, however, he counted them himself and found the package wanting in 14 pairs called for by the bill. He promptly returned to the office of defendant; but, it appearing that the clerks had gone for the day, he did not take the matter up with them until the next day. On the next day the defendant, through its superintendent and `on hand' clerk declined to reopen the question, declaring it settled by the plaintiff's having receipted for the goods as being in good order. Plaintiff then sent forward his check to Mason, Campbell & Co. for the amount of the bill, less the price of the 14 pairs, together...