Gulf, C. S. F. Ry. Co. v. Boss , 285 S.W. 939 ( 1926 )

In his brief, appellee says he commenced and prosecuted this suit "on the theory that Pitcock was a vice principal of appellant" and therefore that "any acts of his were the acts of appellant itself." It may be conceded that Pitcock was such a vice principal while in appellant's service as a section foreman and while engaged in the discharge of duties within the scope of his employment as such a foreman. Article 6641, Vernon's Sayles' Ann.Civ.St. 1914. But certainly he not only was not such a vice principal, but was not a representative of appellant in any capacity when he was not acting within the scope of such employment. The law applicable is stated as follows in 39 C.J. 1279 et seq., where a great number of illustrative cases are cited:

"Under the doctrine of respondeat superior a master is liable for injury to person or property resulting from the acts of his servant done within the scope of his employment in the master's service. On the other hand, the mere existence of the relation of master and servant is not enough to impose on the master liability for whatever torts the servant may commit. Beyond the scope of his employment the servant is as much a stranger to the master as any third person, and an act of the servant not done in the exercise of the service for which he was engaged cannot be regarded as an act of the master and no liability attaches to him by reason of such act under the doctrine of respondeat superior. To render the master liable for an act of this character it must have been expressly authorized or subsequently ratified."

When the doctrine as just stated is applied to the facts of this case as stated above, it clearly appears, we think, that appellant was not liable as charged by appellee and as determined by the trial court. Doubtless Pitcock violated a moral if not a legal duty he individually owed to appellee when he permitted him to use the water and towel, but certainly he did not thereby violate any duty that appellant, or he as appellant's foreman, owed appellee.

We think it plainly and conclusively appeared that appellant was not liable to appellee as charged, and therefore that the trial court erred when he refused to instruct the jury to return a verdict in appellant's favor. Hence the judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.