Lancaster v. Carter

We think the testimony in the record, material parts of which are set out in the statement above, was sufficient to support the finding of the jury that Phillips was acting within the scope of his employment by appellants as "special officer" when he fired the shot that killed Haden Cabbiness. The rules applicable in determining a question of that kind are so well defined in cases cited below they need not be restated here. See Railway Co. v. Currie, 100 Tex. 136, 96 S.W. 1073; Railway Co. v. Lipscomb, 95 Tex. 5; Railway Co. v. Parsons, 102 Tex. 157, 113 S.W. 914; Grubb v. Railway Co., 153 S.W. 694; Express Co. v. Mackley (Ark.)230 S.W. 598. We are also of the opinion that none of the assignments presenting questions as to the action of the trial court in admitting and excluding testimony offered furnish a sufficient reason for reversing the judgment.

The debatable questions made by the assignments are these, we think: (1) Were appellants as receivers of a railway company liable in damages if the act of Phillips as their agent in shooting the boy was "wanton or reckless," as the jury found it was? (2) Should the judgment be reversed because of the error of the trial court in permitting the improper argument indulged in by counsel for appellees in his closing address to the jury?

The applicable part of the statute referred to is as follows:

"An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: 1. * * * When the death of any person is caused by the neglect or carelessness of the receiver or receivers, or other person or persons in charge or control of any railroad, or their servants or agents."

As the terms of the statute "cannot be extended to include cases omitted from its provisions" (Railway Co. v. Lipscomb, 95 Tex. 5,64 S.W. 923, 55 L.R.A. 869, 93 Am. St. Rep. 804; Turner v. Cross,83 Tex. 228, 18 S.W. 578, 15 L.R.A. 262, the first question must be answered in the negative, unless it can be said that the finding of the jury that the act of Phillips in shooting the boy was "wanton" or "reckless" was a finding that the act was "negligent" or "careless" within the meaning of those words in the statute. We think that was the legal effect of the finding, and therefore that the first of the two questions should not be so answered, but should be answered in the affirmative; for the word "reckless" means, among other things, "careless," "heedless," "negligent," according to the dictionaries. See Webster's Dictionary and the Century Dictionary. Therefore it is not giving a wrong or strained effect to the finding of the jury to say it determined that the act of Phillips in shooting the boy was "wanton" or "careless." If it was "careless" it was within the terms of the statute, and the judgment is not erroneous on the ground that it was not, if the finding was supported by testimony — and we think it was. Part of Phillips' duty as special officer was, he testified, "to look after trespassers on the trains," and "to remove trespassers from trains." He was performing that duty when, in obedience to the direction in the telegram he received from appellant's division superintendent, he met the train to take a negro with a pistol off of it. The jury had a right to conclude from his own testimony that the death of the boy was due to the negligent and careless manner in which he undertook to perform that duty; for Phillips testified:

"I fired my pistol for the purpose of frightening the man running from me to see if he wouldn't stop. I did not try to hit him."

If he didn't try to hit "the man," then his hitting the boy was due to negligence and carelessness on his part in shooting toward him as he did.

We are not entirely satisfied that the second of the two questions should not be answered in the affirmative, but conclude the doubt could be resolved in favor of the judgment, because we do not think the improper argument of appellees' counsel "was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case," within the meaning of rule 62a (149 S.W. x) for the government of Courts of Civil Appeals. The amount of damages found by the jury does not appear to be excessive when considered with reference to the testimony, and the findings in themselves indicate that the jury was not influenced by the improper argument, but were careful in their computations. Railway Co. v. Smith, 153 S.W. 391; Railway Co. v. Green,196 S.W. 555.

Assignments not disposed of by what has been said are also overruled.

The judgment is affirmed.