Lytle v. Crescent News and Hotel Co. , 27 Tex. Civ. App. 530 ( 1902 )

FLY, Associate Justice.

This is a suit for damages instituted by appellant against appellee, alleged to have arisen from the acts of an agent of appellee in charge of a certain lunch counter in Schulenburg, Texas. After hearing the evidence introduced by appellant the court instructed a verdict for appellee.

The grounds of recovery stated in the petition were that D. .E. Rhodes, the servant of appellee, whilst acting within the scope of his employment, had negligently shot appellant, and that the character and disposition of said Rhodes was so vicious and dangerous as to render it dangerous for appellant to pursue his business in Schulenburg.

The testimony established that appellant was a railway postal clerk, running between San Antonio and Houston, and sometime in June, 1900, when the train reached Schulenburg, he went to a lunch counter conducted by D. E. Rhodes for appellee, to get something to eat. Rhodes handed him a piece of pie and appellant gave him 50 cents, out of which to get the 5 cents for the pie. Just as appellant got the pie, the train bell rang, and he ran to catch the train without getting his change. The next day appellant was going west from Houston, and took his dinner in the dining room adjoining the lunch stand, and, after eating, went to the lunch stand and asked Rhodes for the change he had left, and Rhodes said that appellant had gotten his change. Several days afterwards appellant went to the lunch stand, and after eating, again demanded the forty-five cents he had left. After talking for awhile, appellant charged Rhodes with taking the money, and Rhodes, with an oath, told him he would “fix him,” and started to get over the counter. Appellant started out and when just outside the door applied a very opprobrious and insulting epithet to Rhodes, who then got a pistol and ran after appellant, and, as he was getting on the train, shot him in the leg. There was no testimony tending to show that Rhodes was of a violent or dangerous disposition, except that he shot appellant after he had charged him with theft and applied to him a vile epithet that always provokes intense resentment in this section of the country, and had invited him out to fight. It will be noted that the difficulty occurred several days after appellant lost his money, and after appellant had been waited on and had paid for his lunch. Rhodes at the time was not engaged in any service for his master, and the quarrel arose over a matter in which appellee did not have the least interest, or with which it was at all connected. Rhodes was not acting in furtherance of the master’s business, or for the accomplishment of the object for which he was emplojred. He was resenting insults heaped on him by appellant; and while the remote cause of the difficulty was a matter connected with the business of appellee, it was too remote to connect appellee with it. “When a recovery is sought of the master for an injury inflicted by his servant, the plaintiff must show that the servant did the wrong while acting within the scope of his employment.” Railway v. Anderson, 82 Texas, 516; Railway v. Cooper, 88 Texas, 607.

There is no error in the judgment, and it is affirmed.

Affirmed.