Magnolia Petroleum Co. v. Guffey , 1933 Tex. App. LEXIS 525 ( 1933 )

FUNDERBURK, Justice.

On December 24, 1930, Bob Lawson, who had charge of a filling station belonging to the Magnolia Petroleum Company, and was engaged in selling oil and gas for said company and collecting and remitting the proceeds, drew a pistol upon Grady Guffey, and by putting him in fear of death or serious bodily injury restrained him of his liberty for several hours. An hour or so previously Guffey had driven into the station, purchased a small guantity of oil and gas, left a tire to be repaired, and gave his check for four or five dollars more than the price of the oil and gas and received the difference in cash. According to the testimony of Guffey, when, on the occasion in question, he had returned for the tire, Lawson drew the gun on him and informed him that the check was no good, refused, for a time, to let him step across the street to get the money, held him in the station with the gun for an hour or longer, then permitted him to cross the street and get the money, which he did, but meanwhile being watched by Lawson with the gun in his hand. When Guffey returned, paid the money, and started to leave, he was further forbidden to do so, and, under threat to shoot him if he attempted to do so, was thus detained for an hour or so longer. The reason given for holding him after the money was paid was that certain officers of the law wanted him and he was being held for them upon another charge of giving a cold check.

This suit was brought by Guffey against the Magnolia Petroleum Company, claiming damages for false imprisonment on the theory that Lawson was its agent and his acts complained of were within the scope of his authority as such agent. Among other defenses pleaded by appellant were that Lawson was not the agent of defendant; that he was an independent contractor; that, even if he was its agent, his acts complained of were not within the scope of his employment; that he was acting for himself and for certain officers of Taylor county who claimed to have a warrant for Guffey’s arrest, and had requested Lawson to hold Guffey for them.

The jury to whom the case was submitted on special issues found the fact of the false imprisonment; that Lawson was acting within the scope of his authority as the agent of the defendant; that he forcibly detained plaintiff on the occasion in question before the latter paid off and redeemed the check; and that plaintiff suffered damages in the sum of $4,625. From the judgment for plaintiff defendant has appealed.

By appellant’s first proposition it is contended that there was no evidence that Lawson had authority, express or implied, unlawfully to detain appellee, and hence the court erred in refusing a peremptory instruction for appellant. By the second proposition it is contended that the undisputed evidence showed that Lawson was acting in his own behalf and that of the constable of precinct No. 1 of Taylor county, who had a warrant for the arrest of' appellee on a matter entirely disconnected from the transaction at the filling station, and hence the court should have directed a verdict for appellee.

The undisputed evidence shows, we think, that Lawson was the servant and agent of appellant, and was not an independent contractor. Spears Dairy v. Bohrer (Tex. Civ. App.) 54 S.W.(2d) 872. The filling station and the oil and gas belonged to appellant. In selling the oil and gas, and in collecting and paying over the proceeds, Lawson acted for appellant. The nature of these duties was such, we think, as to imply the right of control by appellant over him within the definition of agent as heretofore approved by this court. Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; Baldridge v. Klein (Tex. Civ. App.) 56 S.W.(2d) 897.

Unless Lawson had other authority than such as he possessed as the agent of appellant, the act complained of was a criminal offense. There exists no presumption that, because Lawson was the agent of appellant, the commission of such offense was within the scope of his employment. The false imprisonment included, as shown by the undisputed evidence, an assault. Principles relative to the liability of the master for assaults of his servant are therefore deemed applicable. The undisputed evidence showed, we think, that it was a part of the duties of Lawson’s employment to collect the sales price of oil and gas sold. The money, when collected, was the money of appellant. “According to some decisions, where a servant is intrusted with the duty of collecting money due the master, an assault made by the servant to enforce payment is within the scope of his authority and the master is liable.” 89 C. J. p. 1309, § 1509, note 26. Cited as supporting the text is the recent case of Taylor v. Esparza (Tex. Civ. App.) 8 S.W(2d) 288. On the same point, C. J. further says: “Other decisions hold the contrary. And a fortiori is the master not liable for an assault made by the servant where the servant is himself accountable to the master for the price of goods delivered without collecting the charge and the assault is made by the servant after delivery of the goods without collecting the amount due, to enforce payment thereof.”' 39 C. J. 1309, § 1509, notes 27 and 28; McDermott v. American Brewing Ass’n, 105 La. 124, 29 So. 498, 52 L. R. A. 684, 83 Am. St. Rep. 225; Steinman v. Baltimore Antiseptic Steam Laundry, 109 Md. 62, 71 A. 517, 21 L. R. A. (N. S.) 884; Contra: Craven v. Bloomingdale, 54 App. Div. 266, 66 N. Y. S. 525.

Appellant’s contention would, in principle, call for application of that part of the text last quoted. It is argued, in effect, that the undisputed evidence showed that Lawson had no authority to accept checks, and that, when he did so, the checks belonged to him and he became liable to account to appellant for the cash, whether the checks proved good or not; that therefore, in attempting to collect the check, Lawson was acting for himself and not the appellant. Without determining whether, if such was the case, there would, under the undisputed evidence, be no liability of appellant as a matter of law, we are of opinion that the undisputed evidence does not show that appellapt had no interest in checks or that Lawson was without authority to accept checks. Lawson as a witness was asked:

“Did your contract state anything with reference to your taking checks for products sold?, A. Well, nothing only I was responsible for the checks. If I took a check and it was cold it was mine. I had to pay for it.

“Q. How did they go about collecting them, the company? A. Why just come down and made me pay it. The company has a man to go around and take up the money. If I turned, in a cheek and it was cold, he brought it back to my station and if I never collected it I never got anything. It was my check.

“Q. You lost it? A. Yes, sir.

“Q. Then that cheek belonged to you if it was cold? A. Tes sir.”

The undoubted purport of his testimony, which was all there was on the question, is that, as between Lawson and appellant the former was guarantor of the payment of checks which he accepted. His conclusion that the check, if cold, was his, does not alter that fact, nor show that even cheeks were not the property of appellant. Besides, while the witnesses frequently alluded to payment of the particular check in question, it is quite clear that it was the money which Lawson sought to have paid and not the check. The transaction involved a repudiation and rescission of the check, and was in no sense an effort to collect the check as such. It is our conclusion that, if Lawson, after satisfying himself that the check was not good, assaulted and falsely imprisoned appellee to enforce payment for the oil and gas sold him, such was within the scope of his employment. Cameron Compress Co. v. Kubecka (Tex. Civ. App.) 283 S. W. 286; G., C. & S. F. Ry. Co. v. Cobb (Tex. Civ. App.) 45 S.W.(2d) 323; Guitar v. Wheeler (Tex. Civ. App.) 36 S.W.(2d) 325; Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880; Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Lancaster v. Carter (Tex. Com. App.) 255 S. W. 392; Buck v. Standard Oil Co., 249 N. Y. 695, 164 N. E. 597. We are not prepared to hold that there was no evidence to support a finding to that effect. We are also of opinion that, although there was ample evidence to support a finding that Lawson, in detaining ap-pellee, did so for certain officers of Taylor county, we cannot say that the undisputed evidence was to that effect. Propositions 1 and 2 are therefore overruled.

By its sixth proposition appellant contends, in effect, that, there being evidence raising an issue of fact as to whether or not Lawson detained the plaintiff for the constable upon instructions of the latter to Lawson and Dees, his assistant, therefore the court erred in refusing to submit its requested special issue No. 2 calling for a finding of such fact. If Lawson was acting for the constable, then his acts complained of were not within the scope of his authority. It is wholly beside the question whether the constable had authority to arrest him, or to authorize Lawson to do so. Lawson, as to the particular transaction in such a case, was not the agent of appellant. That is the material question, and not whether he was properly authorized to arrest Guffey upon the request of the officer. A finding of such issue in favor of appellant would have entitled it to a judgment. Under the authority of Colorado & S. Ry. Co. v. Rowo (Tex. Com. App.) 238 S. W. 908, and the numerous cases following it, we are forced to hold that the court erred in refusing to submit the issue as requested.

By its seventh proposition appellant complains of the admission in evidence, over its objection that same was immaterial and prejudicial, the testimony of appellee to the effect that his father and brothers were well fixed financially. “Testimony as to the financial condition of the plaintiff is inadmissible in a personal injury action.” 17 Tex. Jur. 418, § 151; M., K. & T. Ry. Co. v. Hannig, 91 Tex. 347, 348, 43 S. W. 608; St. L. S. W. Ry. Co. v. Kimmey (Tex. Civ. App.) 189 S. W. 550; Northern Texas Traction Co. v. Jenkins (Tex. Civ. App.) 266 S. W. 175. We see no reason why the principle of this rule would not include testimony as to the financial condition of plaintiff’s father and brothers. This proposition is also sustained.

In its eighth proposition appellant contends that the court erred in admitting in evidence, over its objection to the effect that such evidence was immaterial and calculated to awaken the sympathy of the jury and increase its verdict, the testimony of appellee to the effect that he made his living as a day laborer and that work in which he was engaged was scarce. This proposition is also sustained as being supported by the same authorities cited in support of the one next above discussed.

Appellant’s ninth proposition in substance complains that the court erred in excluding the testimony of Bob Lawson to the effect that, in detaining appellee, he was acting under instructions of the county attorney. What we have said in disposing of the sixth, proposition is deemed applicable to this. It is sustained upon the authority of Colorado & So. Ry. Co. v. Rowe, supra.

We deem it unnecessary to discuss other propositions. They are either controlled by what we have already said, or, if not, are rendered immaterial by reason of the disposition of the appeal made necessary by the conclusions herein stated.

Being of opinion that the judgment of the court below should be reversed and the cause remanded for a new trial, it is accordingly so ordered.