American Express Co. v. Paroarello

HIGGINS, J. This suit was brought by the surviving wife and children of Peter Parcarello against the American Express Company for damages arising from injuries resulting in death, under the second subdivision of article 4694, Revised Civil Statutes of 1911. The deceased received the injuries from which death ensued by being *928 thrown from a wagon in which he was sitting on Main street in the city of Houston, when one of the defendant’s wagons, driven by one of its employes, came in contact therewith. It was averred that the mules drawing the wagon were headstrong, hard-mouthed, unbridlewise, unruly, and uncontrollable; that the defendant was negligent in employing said mules in drawing its wagons, knowing them to be of the character and disposition- described, or of which it would have known by the esercise of ordinary care. We find that the deceased came to his death through the negligence of defendant, and upon his part that he was free from negligence contributing to his injuries. Under the second section of the article quoted above, damages on account of injuries resulting in death may be recovered of a corporation such as appellant only when the death of deceased is caused by the wrongful act, 'negligence, unskillfulness, or default of the corporation itself, as contradistinguish-ed from that of its mere agents and servants. Fleming v. Texas Loan Agency, 87 Tex. 238, 27 S. W. 126, 26 L. R. A. 250. It is insisted the evidence wholly fails to convict appellant of negligence in employing in its service the mules in question; that the negligence of its local agent, Frazier, in this respect cannot be imputed to the company, as he was not a vice principal, and a peremptory instruction in its behalf should have been given. In this view we cannot concur. It is quite true the drivers Thrift and Chandler were mere employés, and that their knowledge of the vicious, unruly, and dangerous disposition of the animals would not convict appellant of negligence in retaining them in use, but the knowledge of Frazier would. While Frazier had nothing to do with the original selection of the animals and their installation in the company’s service, and the agent of the company who did so may have been free from negligence in this respect, yet the evidence discloses that, if an animal for any reason became unfit for service, Frazier had the authority to take him out and hire another one temporarily until he could procure a proper one from Kansas City, at which point the com-, pany procured its animals and had a man to make purchases for it. In respect to his duty to displace unsuitable animals, Frazier performed a corporate duty, and acted not as a mere agent or employé, but represented appellant in its corporate capacity, and as its alter ego. His negligence in this respect was the negligence of the company. If it should be conceded that he was not the vice principal of the company in this matter, nevertheless the fact remains that the mules had been in the service for five or six months. During all this time the evidence shows them to have been vicious and dangerous. Their employment for this length of time is sufficient to support a finding that appellant knew, or, in the exercise of ordinary care, would have known, of their vicious and dangerous character. Paragraph IV of the charge to the jury reads: “Now, therefore, if you shall believe from a preponderance of the evidence that the mules driven by Thrift were of an unruly and uncontrollable disposition, and were known to be so by defendant, American Express Company, or would have been known to be so by said company by the exercise of ordinary care, and believe the wagon drawn by said mules, 'while being driven by said Thrift in the business of the said company, came into collision with the wagon in which the deceased Parcarello was, and thereby threw or caused him to fall from said wagon to the pavement of the street and be injured substantially at the time and place and in the manner alleged by plaintiff, and that as a result of such injury he died, and you believe the coming into collision of the wagon drawn by the said mules with the wagon in which the said Parcarello was, if it did that, was due to unruly and uncontrollable conduct on the part of one of said mules, and believe defendant in using said mule for drawing its wagons, in the exercise of ordinary care, should have foreseen that an accident of like character was liable to happen, and believe defendant in using said mule for drawing said wagon was guilty of negligence under the circumstances, and believe said negligence was the proximate cause of the injury and death of said Parcarello, you will return a verdict for plaintiffs, but, unless you so find, you will return verdict for defendant.” The paragraph quoted is criticised in the following particulars: (a) It was erroneous to instruct that the company was liable for negligence in the particulars enumerated, without limiting the acts of negligence for which it would be liable to those of a vice principal or officer authorized to represent it in its corporate capacity, (b) The charge should have affirmatively eliminated the negligence of the company’s servants and agents as a basis of recovery, (e) The charge as given fixes liability for the negligence of defendant’s servants and agents. As to this last criticism, it is not well taken. The charge predicates liability upon the negligence of the company in accordance with the statute, and not upon its agents or servants. The other objections are likewise without merit. It is true the charge does not define the relationship of a vice principal, as distinguished from a mere agent or employé, but there is no positive misdirection, and if appellant desired more complete instructions in this respect, it should have requested same. The error was of omission and is not reversible. Parks v. Ry. Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; Ry. Co. v. Motwiller, 101 Tex. 521, 109 S. W. 918; Ry. Co. v. Dumas, 149 S. W. 543; Freeman v. Cleary, 136 6. W. 525; Ry. Co. v. Hampton, 142 S. W. 93. Considering the charge as a whole and *929 in connection with, the special charge given at appellant’s instance, it is not subject to the objections urged under the third assignment. Ry. Co. v. Berry, 47 Tex. Civ. App. 327, 105 S. W. 1020; Ry. Co. v. Morrison, 46 Tex. Civ. App. 186, 102 S. W. 145; Ry. Co. v. Ochiltree, 104 Tex. 265, 136 S. W. 767; Womack & Sturgis v. Ry. Co., 100 Tex. 455, 100 S. W. 1151. Appellant requested special charges which read: “No. 4. A private corporation such as is the American Express Company is not hable for injuries resulting in death from the negligence of its servants or agents, but is liable in no case for such injuries, unless the death was caused by the negligence of some officer or officers of it authorized by it to represent it in its corporate capacity. If you believe from the evidence that no officer of the American Express Company authorized by it to represent it in its corporate capacity knew of the character or disposition of the mules driven by Thrift, or would have known of the same by the exercise of ordinary care, you will return a verdict for the defendant, American Express Company, although you may believe from the evidence that one or more of its agents not so authorized to represent it knew of the character or disposition of said mules, and further believe that said mules were of an unruly and uncontrollable disposition.” “No. 6. If you believe from the evidence that only an agent or agents of the American Express Company knew of the character or disposition of the mules which Thrift was driving, and that their character or disposition was not known by any officer or officers of the American Express Company authorized by it to represent it in its corporate capacity, and would not have been known by them in the exercise of ordinary care, you will return a verdict for the defendant, even though you believe that the mules were of an unruly and uncontrollable disposition, as a corporation such as is the American Express Company is not liable for the negligence of its servants or agents, but only for the negligence of the persons authorized to represent it in its corporate capacity.” “No. 8. If you believe from the evidence that the mules driven by Thrift were permitted to remain in the service by the agents of the American Express Company and not by any officer of the company authorized to represent it in its corporate capacity, you will return a verdict for the defendant.” These charges were evidently intended to supply the omission in the charge noted, so as to make clear the distinction and liability of defendant for the negligence of its representatives, who acted in the capacity of vice principals, as distinguished from mere agents or servants; but the charges in the form requested were properly refused, since the liability of defendant is made to depend upon knowledge of the character of the mules by an officer or officers, whereas knowledge by any agent sustaining the relationship of a vice principal would fix liability. The fifth, seventh, and ninth assignments complain that, if these special charges were not correct as drawn, they were nevertheless sufficient to call the court’s attention to the omission in its main charge, and the court therefore erred in omitting to frame and give a correct charge upon the.subject. The charge of the court predicated liability upon defendant’s negligence. This was a correct, general presentation of the issue. If appellant desired a charge which would distinguish between its representatives for whose negligence it would be liable and those for whom it would not, it should have prepared and requested correct charges, and the failure of the court to frame correct instructions in lieu of the improper requested ones presents no error. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Southwestern etc., v. McBrayer, 140 S. W. 388; Landrum v. Thomas, 149 S. W. 813; Ry. Co. v. Sorey, 142 S. W. 119. The assignments last indicated, as well as the eleventh, are therefore overruled. Special charge number two was properly refused. It would have authorized the jury to disregard the knowledge of Erazier, wh'o was an agent intrusted with powers which made him a vice principal, with respect to the duty of removing the mules from the company’s service, and his knowledge of their nature and disposition was in law the knowledge of defendant. Under its twelfth assignment of error, appellant complains of certain language used by appellee’s counsel, John W. Parker, while addressing the jury. The language objected to was highly improper and justly subjects counsel to criticism for its use. It was uncalled for, and finds no support in the record, and the trial court should have reprimanded him for its use. The majority of this court are of the opinion that the use of this language constitutes reversible error. The writer concurs in the view that the language was improper, but is not of the opinion that it constitutes reversible error. For the reason hereinafter indicated, we all concur in the view that the assignment should be overruled, and it is therefore unnecessary to state our divergent views upon the question of whether or not the use of the objectionable language constitutes reversible error. The bill of exception simply states that defendant in open court excepted to the language used, and that the court made no ruling, did not reprimand counsel for making the remarks, and permitted him to proceed without rebuke. If language be used by counsel in addressing a jury which opposing counsel deem improper, and to which they object, they should, in calling the court’s attention to the language which they deem improper, state the grounds of their objection. Unless the bill of exception discloses that *930 the grounds of objection were pointed out to the trial court, this court will not revise the action of the trial court in failing to rule or act upon such an objection made. It is clearly analogous to objections made to the admission of evidence. The action of the trial court in such matters will not be revised, unless the bill of exception shows the objections made. It has been frequently so held. We therefore all concur in the view that the bill of exception taken to the objectionable language is insufficient to warrant this court in taking any action in regard thereto. Affirmed.