author: RAINEY, C. J.

text:
    BOUNDS et al. v. STEPHENSON et al.

    (No. 7441.)
    (Court of Civil Appeals of Texas. Dallas.
    June 10, 1916.
    Rehearing Denied July 1, 1916.)
    1. CORPORATIONS <&wkey;320(ll) — LIABILITY OF OFFICERS — UNDUE Expenditures.
    Evidence held insufficient to show that defendant corporation president hired attorneys without proper authority, or without necessity for their employment, so that he could not be held liable to stockholders for the fees paid them.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1437; Dec. Dig. &wkey;320(ll).]
    2. Corporations <&wkey;320(ll) — Liability of Officers — Undue Expenditures — Collusion.
    Evidence held insufficient to show that corporation officers were in collusion in fixing their salaries at an exorbitant figure, so that they could not he held liable to the stockholders for the amounts so expended.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1437; Dee. Dig. &wkey;320(ll).]
    3. Corporations <&wkey;312(3) — Liability of Officers — Undue Expenditures.
    The mere fact that, where by-laws required 10 days’ notice of meeting to stockholders, the officers sent with the notice two proxy slips, one of which ran to the officers, and sent also a stamped envelope for return of the proxy, is insufficient to show mismanagement; the additional expense being slight.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1380, 1381; Dec. Dig. &wkey;312(3).]
    4. Corporations <&wkey;312(l), 317(3) — Liability of Officers — Undue Expenditures.
    Where a corporation was authorized to act as surety, and its officers in its name signed an undertaking for the brother of the president, and on default suffered judgment against it, but took judgment over against the brother, and secured a lien on land to secure it, but did not release the judgment, such facts were insufficient to show mismanagement or fraud.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1376-1378, 1390, 1392, 1407; Dec. Dig. &wkey;312(l), 317(3).]
    5.Corporations &wkey;>294 — Liability of Officers — Undue Expenditures.
    Evidence held insufficient to show mismanagement of a surety corporation sufficient to warrant, on a stockholder’s petition, removal of the president from office as trustee, with right to make loans for stock sales.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1263-1266; Dec. Dig. &wkey;294J 6.. Corporations <&wkey;322 — Officers—EIxces-sive Salaries.
    Salary of a corporation president cannot be held excessive, where there is nothing to show the duties exacted of him.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1365; Dec. Dig. &wkey;3322.]
    7. Corporations <&wkey;553(l) — Receivers—Appointment — When Proper.
    The power to appoint a receiver, especially of a corporation, will not be exercised, except upon a very grave necessity, and upon a clear showing that the applicants’ rights imperatively demand the appointment, and that without it he had no adequate remedy, and is in danger of suffering irreparable loss.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 2201, 2210, 2213-2216; Dec. Dig. &wkey;553(l).]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit for injunction and other relief by W. R. Bounds and others against J. B. Stephenson and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellants. Smith, Robertson & Robertson and Locke & ■ Locke, all of Dallas, for appellees.

      Application for writ of error pending in, Supreme Court.

   RAINEY, C. J.

We take from appellants’ brief the statement of the case, as follows:

Appellants for themselves, other stockholders similarly situated, and for the General Bonding & Casualty Insurance Company, sued John B. Stephenson, James A. Stephenson, George W. Riddle, A. Ragland, T. A. Smith, Frank Ezell, J. H. Christler, and the General Bonding & Casualty Insurance Company, and alleged, in substance: That appellants are stockholders of the General Bonding & Casualty Insurance Company, which company was incorporated for the purpose, of transacting all kinds of surety, casualty, and liability insurance. All defendants, except James A. Stephenson and J. II. Christler, were alleged to be directors, John B. Stephenson was alleged to be president, and T. A. Smith secretary, of said company. It was alleged that John B. Stephenson had dominated the company since its organization; that by virtue of agreements and conspiracies between John B. Stephenson, James A. Stephenson, J. H. Christler, George W. Riddle, A. Rag-land, Harry L. Seay, and others, John B. Stephenson had retained himself in the offices of director and president of the company, and had voted to pay himself large sums of money in the way of salaries; that John B. Stephenson and his brother, James A. Stephenson, and their partner, J. II. Christler, acquired in their effort to control the company certain shares of the company’s stock, and in order to sell said stock lent to the purchasers and prospective purchasers thereof the company’s money, at 6 per cent, per annum, with which to pay therefor, when the company could have lent its money at 8 and 10 per cent.; that said. John B. Stephenson paid large sums of money to Locke & Locke, and other attorneys, unlawfully and improperly, the company at the time having a general attorney, who was employed and paid for the purpose of attending to its iegal affairs; that in order to acquire and hold control of the company John B. Stephenson sent out letters, signed by the General Bonding & Casualty Insurance Company, asking stockholders for proxies, authorizing him, or some of his copartners, or dummy directors, to vote for such shareholders; that said campaigns for proxies were conducted at the expense of the company; that said John B. Stephenson, J. H. Christler, and other officers, as directors of the company, voted themselves salaries; that John B. Stephenson and his copartners made a contract with J. H. Christler to elect him a salaried officer of the company, and pay him a salary, in consideration for his purchase of stock from a copartnership composed of John B. Stephenson, J. A. Stephenson, and others, and that this contract was carried into effect, and a salary was paid to J. H. Christler, although said Christler was wholly incompetent and unfit to discharge the duties of the office; that said John B. Stephenson, as president of the company, obligated the company on a bond in the penal sum of $30,000, conditioned that James A. Stephenson, T. H. Stephenson, and D. D. Crockett would pay a note executed to W. C. Tyrrell, and that said T. H. Stephenson and D. D. Crockett would sell a certain number of shares of the stock of the Republic Trust Company at a certain price per share; that James A. Stephenson, T. H. Stephenson, and John B. Stephenson are brothers; that a judgment was obtained by W. C. Tyrrell against the company on said bond in the sum of approximately' $24,000, and a judgment by the company over against James A. Stephenson; that the company was compelled to pay the judgment to Tyrrell and borrow the money for said purpose, but that John B. Stephenson had failed and refused to collect the judgment from his brother, James A. Stephenson, although the plaintiffs, as stockholders, demanded that such judgment be collected, and pointed out property that could be levied on, and out of which said judgment could be collected; that on account of the unlawful expenditures made by John B. Stephenson, plaintiffs, as minority stockholders, were entitled to a judgment in behalf of the company against John B. Stephenson, and were also entitled, in behalf of the company, to have the .-judgment against John B. Stephenson, James A. Stephenson, Harry L. Seay, ¿’rank Ezell, George W. Riddle, T. A. Smith, and T. L. Camp, by voting their own stock and proxies, acquired in a campaign conducted at the expense of the company, had voted to liquidate the company and to make themselves, with exception of James A. Stephenson and Harry L. Seay, liquidating agents, but, after so voting to liquidate, said John B. Stephenson, George W. Riddle, T. A. Smith, Frank Ezell, and T. L. Camp delivered all of the property and assets of the company, amounting in value to over $300,000, into the hands of John B. Stephenson, and by an instrument in writing, purporting to be a resolution of the directors, gave John B. Stephenson plenary power to sell the assets of the corporation at any price, to retain all of the officers and employes of the company at exorbitant salaries, and thereby dissipate the company's assets, and to do any and all other things which he (John B. Stephenson) might desire to do with regard to the properties and assets of said company; that it had become manifest that the object for which the corporation was organized could not be attained, and upon this becoming manifest the stockholders of the company owned the assets jointly, and were entitled to have a receiver appointed to take possession of them and wind up the affairs of the company; that John B. Stephenson, to whom the so-called directors delivered the assets of the company, with full power to dispose of the same, was. insolvent, and not only insolvent, but by his conduct in the handling of the business of the company, particularly with reference to his said refusal to collect the judgment from his brother, James A. Stephenson, and his conduct with reference to selling stock belonging to his brother and himself to persons to whom he had lent the company’s money at 6 per cent, to pay for the stock, had shown himself to be an unfit person to act as trustee for the stockholders in winding up the company’s affairs. The suit was dismissed as to J. H. Christler. Plaintiffs, in behalf of the General Bonding & Casualty Insurance Company, asked for judgment against John B. Stephenson for the moneys unlawfully expended by him for attorney’s fees, salaries, conducting campaigns for proxies, etc., and also, in behalf of said company, prayed for a mandatory injunction requiring the collection of the judgment against James A. Stephenson, and for the appointment of a'receiver to take possession of the assets and wind up the affairs of the General Bonding & Casualty Insurance Company. The case was tried before the court, and judgment was rendered that plaintiffs take nothing, and that the defendants recover of plaintiffs their costs, from which judgment this appeal is taken.

The first error assigned is:

“Evidence showing, without contradiction, that under the by-laws of the General Bonding & Casualty Insurance Company the executive committee had the sole authority to appoint an attorney, and that the executive committee employed T. L. Camp as attorney for the company, who was paid a salary of $250 a month to attend to the legal business of the company, and further showing that John B. Stephenson, the president of the company, without authority, employed other attorneys to perform the services which the said T. L. Camp was obligated to perform by the terms of his employment, and that said John B. Stephenson paid from the funds of the company large sums of money, to wit, approximately $7,000, to Locke & Locke and other attorneys, who were not employed by the executive committee, and who were employed by said John B. Stephenson without authority, the court erred in holding that the plaintiffs, as minority stockholders of the General Bonding & Casualty Insurance Company, were not entitled to recover, in behalf of the corporation, and from John B. Stephenson, said sums so unlawfully expended by him.”

The General Bonding & Casualty Insurance Company was incorporated on November 20, 1910, for the purpose of transacting all kinds of surety, casualty, and liability insurance business. J. B. Stephenson was its first secretary, and remained so until in January, 1912, when he was elected president and general manager. The by-laws of the company provide that the general attorney shall have charge of the legal department of the company, and shall advise concerning claims made upon it, and litigation in which it may be involved. Appellant says that;

“The evidence shows that a by-law was adopted conferring upon the executive committee of the company authority to employ counsel. It affirmatively appears that authority was not vested in the president of the company, John B. Stephenson, to employ attorneys.”

But in support thereof he does not recite the record page where it can be found. This statement is controverted by appellee, who. contends that Stephenson had the authority usually incident to the combined office of president and general manager. Mr. T. L. Camp was employed as the general attorney for the company and testified:

“As gen'eral attorney of this company, it is true that I never refused to perform any services I was called upon to perform, except possibly in one suit. X have suggested the employment of counsel in many cases, and I suggested the employment of counsel in this case., tried in this court a few days ago, that I did not appear in. That was the only case in which I refused to appear, and that was not a refusal, but a suggestion that other counsel be employed. All these expenditures for attorney’s fees paid out by this comparo7 have not been paid out under my direction. Sir. Stephenson has employed counsel in eases that were not employed under my direction; but he had usually talked to me about it, either before or after, and I' have always acquiesced in it. I agreed' to it. * * * I know that the by-laws provide that the executive committee shall appoint an attorney to look after the legal affairs of the company, but I do not recall the exact wording of it. I recall that there is such a power in the executive committee, and that it specifies the duties of the general attorney.”

He further testified that the company had considerable litigation in different iiarts of the state, and he assumed that lie himself had the right to employ other counsel, and that his understanding of the duties of the general attorneys were as above stated from the by-laws; that he did not understand that it was his duty to go all over the state, trjung all the cases that arose; that, on the contrary, it was understood that he had authority to employ counsel to take charge of litigation in other parts of the state, and that as a matter of fact he had done so a great many times. It does appear that both Camp, general attorney, and Stephenson, as president and manager, did employ, at different times, counsel who rendered services for the company; but it does not appear definitely how much was paid by each. These services were accepted by the company, and Stephenson’s acts were ratified by the directors. There is no fraud charged on the part of Stephenson in employing said counsel, nor is it shown that such employment was not necessary, or that the fees paid were unreasonable. We think, under the facts shown and the decision in Ice Co. v. Crawford, 18 Tex. Civ. App. 176, 44 S. W. 877, the court did not err in holding against the appellant.

The appellant’s second assignment of error is:

“The evidence showing without contradiction that George W. Riddle was a dummy director, subject to the influence and control of John B. Stephenson, and further that John B. Stephenson and T. L. Camp were jointly interested in 807 shares of the stock of the company, which they held under a voting trust, which obligated T. D. Camp to vote his interest in said stock for John B. Stephenson, and, further, that before each director’s meeting, at which John B. Stephenson was elected to a salaried office, he consulted with George W. Riddle about the amount of salary he should have, and procured the promise of George W. Riddle to vote to fix his salary at the amount suggested by John B. Stephenson, and that, at each directors’ meeting at which John B. Stephenson’s salary was fixed and voted, John B. Stephenson, J. H. Christler, and T. D. Camp, all of whom were drawing salaries from the company, voted to fix each other’s salaries, and that George W. Riddle joined in their vote to fix their salaries, and voted, as he had agreed to, for whatever salary John B. Stephenson desired as president of the company, and further showing that there was community of interest and collusion between them with regard to fixing said salaries, and that the salaries of John B. Stephenson and J. H. Christler could not have been voted and paid to them without the votes of T. D. Camp and George W. Riddle, and that the votes of George W. Riddle, T. L. Camp, J. H. Christler, and John B. Stephenson were necessary to fixing and paying the salaries voted and paid to J. H. Christler and John B. Stephenson from and after the-day of January, A. D. 1912, the court erred in holding that the plaintiffs, as minority stockholders, were not entitled to recover in behalf of the corporation, against John B. Stephenson, the amount of salary so unlawfully voted and paid from the funds of the company to John B. Stephenson and J. II. Christler from and after the-clay of January, A. D. 1912.”

This assignment, in effect, attacks the acts of the directors, in that there was collusion between them in the fixing of salaries of Stephenson, president, and Christler, secretary, and that Iiiticlle was the tool of Stephenson and under his control in acting for the concern, and charges that the evidence is uncontradicted to show this. On the proposition of 'Riddle being a dummy of Stephenson, it was shown: That he was the president of the First State Bank of Dallas, of which Stephenson was a patron, and from which ho sometimes borrowed money, and in which the funds of this company were deposited, and with which it transacted its banking business. That Riddle owned one share of stock in this banking company, and had been a director of this company from its beginning. Riddle testified:

“ * * * Since the organization of the company I have advised with John B. Stephenson frequently, and I usually had an understanding wi,th him, and he frequently advised with me. I have had an understanding with him, anti always supported him for president of the company, and always voted for him as director. As to the salary, that is a matter that has been discussed between us, and agreement reached between he and I, before the election. The records will show if I voted to raise his salary. My mind don’t serve me just exactly that way. Before doing that he has always discussed the matter with me. He lias always been that frank with me, and been that considerate of me.”

Riddle was a man of substantial means and business standing. The company was organized in December, 1910. It had a board of 36 directors, among whom were both the appellants, who attended the first meeting. The company started out with too great an expense, there being eight salaried officers; the president receiving $5,000, Stephenson as secretary, $8,000. On March 14, 1911, Stephenson and Kneeland, secretary and vice president, respectively, addressed to the president a communication to the effect that expenses were too great and tendered their resignations, to take effect immediately, and tendering their help in every way possible. The executive committee on April 11, 1911, considered this communication and refused to accept said resignations, and the salaries of the president, vice president, and secretary were reduced from $5,000, $3,000, and $3,000, respectively, to $2,400 each. The treasurer, medical director and agency director, whose salaries had been $3,0u0, $3,600, and $2,400 each, were retired, and the salary of the medical director was fixed at $100 per month. At the annual meeting of the stockholders January 9, 1912, 19 being present, including the appellants, salaries were fixed for president, $3,600; secretary-treasurer, $3,000; vice president, $3,600; and general attorney, $1,S00. At this meeting J. B. Stephenson was unanimously elected president. In 1913 the board of directors was reduced from 36 to 7, and the president’s salary was increased to $4,S00. No vote was ever cast against Stephenson as president, and no officer voted to fix'his own salary. There was no agreement existing between Seay, Stephenson, Camp, and James A. Stephenson with regard to the 307 shares of stock owned by them jointly, although the stock was always voted by them in harmony, but never against the wishes of J. B. Stephenson. In 1914 the board of directors elected were J. B. Stephenson, Harry L. Seay, George W. Riddle, A. Ragland, O. M. Smithdeal, W. R. Bounds, and T. L. Camp. Of these Stephenson and Camp were the only salaried officials.

While the evidence shows that the board of directors were harmonious, there being no friction among them, yet we do not think there was any collusion between them to act against the interest of the company and only for their interest. The evidence fails to show that either of them voted to fix their own salary, or that any salary was fixed by improper acts on the part of either director. There is nothing showing what the services of John B. Stephenson were worth as president, or that his salary was exorbitant. This assignment is overruled.

Appellant’s third assignment of error is:

“The evidence showing, without contradiction, that before each annual meeting of stockholders John B. Stephenson sent proxies to each stockholder, with his name, or the names of his partners and dummy directors, inserted therein; that he had said proxies printed at the expense of the General Bonding & Casualty Insurance Company; that he bought stamps to mail same out from the funds of said company, and inclosed stamped envelopes, the stamps on which were bought from the funds of said company ; that he signed the name of the company to the letters calling for said proxies, as though it were the company itself asking the stockholders to send in said proxies; that he used the money of the company and the time of the em-ployés of the company in sending out said letters to the stockholders, in order that he might retain his control and management of the company; and that he did, by such methods, obtain a sufficient number of proxies to enable him to elect such directors as he might choose, who would retain him in the control and management of said company, and that he did by these methods continue himself in control and management of the affairs of said company — the court erred in holding that the plaintiffs, as minority stockholders, were not entitled to recover, in behalf of said corporation and against John B. Stephenson, the amounts so unlawfully expended by him from the funds of the company.”

The by-laws of the company require 10 days’ notice to be given of each regular meeting of the stockholders, by mailing to each registered stockholder a written notice, addressed to him at his last address appearing upon the records of the company. The custom of the company was to send out a printed notice of the meeting, and to send with it two proxy forms, one printed on white paper and the other on blue paper. In the form printed on white paper the names of proxies were inserted, and in the form printed on blue paper no name was inserted, but a space was left to be filled in by the stockholder if he chose to be represented by some one other than those whose names were printed on the white blank. The notice, of course, was signed by the company through some officer, usually Mr. Stephenson. Several sets of notices and proxy forms appear in the statement of facts. They are similar in their terms. At the meeting of 1912 the white paper proxy form did not have the name of J. B. Stephenson on it, but for 1913 and 1914 his name did appear as one of the proxies. We see no objection to this way of procuring proxies for having sufficient shares of stock represented. No deception was practiced in securing proxies — every one was given an opportunity to vote for any one he chose to represent him in the meeting, and it seems to us that this manner of proceeding was fair, and insured practically a fuller meeting of stockholders than otherwise. The expense for printing the extra slips and sending them with the regular notices was but a trifle, and should not be considered.

The fourth assignment, in effect, complains: That John B. Stephenson, as president of said company, signed the name of said company to a surety bond for $30,000 upon which his two brothers and another were principals. That said bond was sued on, that J. B. Stephenson and the other directors failed to make any defense to same, and that judgment was rendered against the company for $24,000, with judgment over against the principals. That Crockett and T. H. Stephenson, two of 'the principals, were insolvent. That James A. Stephenson, the other principal, had property out of which the judgment could have been collected. That said company borrowed money and paid judgment, and that at a meeting called to settle with James A. Stephenson his note was accepted, secured by lien on Western lands, which was done over the protest of appellants. That James A. Stephenson owned certain shares of stock, which the directors refused to garnishee or to proceed to collect the judgment, all of which entitled appellant to a mandatory injunction.

Appellant was within its charter powers in becoming surety on said undertaking. It was also bound for the payment of the judgment rendered against it, and this much should be conceded; but the question is: Should the directors of appellant company have proceeded to the enforcement of the judgment against the Stephensons and Crockett, and not have made the agreement with James A. Stephenson for an extension of time for payment by him? John B. Stephenson, being a brother of James A. Stephenson, did not take part in the settlement made between James A. Stephenson and the other directors, and it does not follow that the other directors acted contrary to the best interest of the company in making the settlement. The judgment was not released in any way against James B. Stephenson, and he had given a lien on Western land to secure its- payment. By enforcement of the judgment the land may have been sold under execution for much less than enough to pay the debt, while by pursuing a more lenient course in granting further time the debt might be paid. Taking this course rested with the directors, and the evidence shows that they acted in good faith, believing that the best interest of the stockholders would be subserved by pursuing that course. This latter view seems to have been adopted by the trial court, and we do not feel justified from the evidence in saying that he acted wrong.

The fifth assignment of error complains of the court in rendering judgment for ap-pellees and in not appointing a receiver, in that the uncontradicted evidence shows that John B. Stephenson, the1 president, dominated the directory, that the directory had failed to attain the object for which the company was incorporated, and that said Stephenson was insolvent and unfit for the office of trustee and the making of loans to facilitate stock sales.

We are of the opinion that the evidence is not uncontradicted or so conclusive one way that it required the trial court to appoint a receiver at the instance of appellants. It is true that the company had failed to succeed in its undertaking, and directory felt that its affairs should be placed in the hands of a trustee for liquidation, and John B. Stephenson was named as such trustee. This action was approved by a majority of the stockholders at a regular meeting. The unfitness of said Stephenson for the office of trustee was not shown. The evidence does not show that he was insolvent, or that he was dishonest or incapable to carry out the trust. It shows, on the other hand, that he was an experienced business man and regarded as a man of integrity and capability, that the directors conferred with him and acted in harmony with each other in conducting the affairs of the company, and it is not conclusively shown that he dominated them to the detriment of the company’s interest. They were all men of reputable standing, and Biddle, Camp, Christler, and Seay were men of large means and were independent, and the evidence shows they were not dominated by Stephenson. That they should have trusted each other and worked in harmony for the interest of the company was to be expected.

We think the evidence fails to show the directory censurable for the transactions in making loans to facilitate the sale of stock as charged. While some censure may lie for the settlement of the Tyrrell judgment, yet it is no uncommon thing for some errors to be made by the best-managed businesses, and though a mistake was made in this transaction, the evidence does not show that the amount will not be ultimately recovered and the company recoup its loss.

The evidence fails to show what work was required of the president, John B. Stephenson, and that the salary paid him was excessive. Without such proof, we are unable to say that he has received any greater salary than he .was entitled to, and which he should have refused.

That the evidence fails to show that the property would be administered with less expense by the appointment of a receiver than by the trustee appointed is at least doubtful, and we are unable to say that the court erred in its judgment.

“The power to appoint a receiver, especially of a corporation, will.not be exercised, except upon a very grave necessity, and upon a clear showing that the applicant’s rights imperatively demand the appointment, and that without it ho has no adequate remedj', and is in danger of suffering irreparable loss.” Investment Co. v. Crawford, 45 S. W. 738; Trust Co. v. Cowart, 173 S. W. 588.

We have given all the assignments due consideration, and have concluded that the evidence is sufficient to support the action of the trial court; therefore the judgment is affirmed.
      «Sssffor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. ■ J.

license: Public Domain

text:
    GLENS FALLS INS. CO. v. WALKER.

    (No. 8387.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 3, 1916.
    Rehearing Denied July 1, 1916.)
    1. Insurance <&wkey;6G5(2) — Actions — Sufficiency of Evidence — Delivery of Policy.
    Evidence held to sustain a verdict that a fire insurance policy was delivered to assured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1709; Dec. Dig. <&wkey;G65(2)J
    2. Insurance <&wkey;235 — Actions—Sufficiency of Evidence — Cancellation of Policy.
    Evidence held to sustain a verdict that a fire insurance policy was not canceled by mutual consent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 507; Dec. Dig. &wkey;235.]
    3. Estoppel <&wkey;56 — Equitable Estoppel-Essentials — Prejudice to Party Claim-ins Estoppel.
    Assured’s acquiescence in an insurance agent’s mistaken statement that contemplated foreclosure proceedings voided the policy does not estop him from denying that the policy was canceled by mutual consent, where there is no proof that his silence misled the insurer.
    [Ed. Note. — For other cases, sec Estoppel, Cent. Dig. § 142; Dec. Dig. <&wkey;56.]
    4. Insurance <&wkey;651(4) — Actions—Evidence — Admissibility — Cancellation of Policy.
    Where the defendant fire insurance company claimed that a policy had been canceled by mutual consent in a conversation between its agent and assured, the assured’s explanation that he understood the policy was void only during certain foreclosure proceedings is admissible, where the conversation was somewhat ambiguous.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1673; Dec. Dig. @=»651(4).]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by Herbert G. Walker against the Glens Falls Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 166 S. W. 122.
    Crane & Crane, of Dallas, for appellant. Charles Kassel, of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   CONNER, C. ■ J.

Appellee recovered a judgment for $1,150 upon a policy of fire insurance issued by the appellant company in terms payable to appellee “as his interest should appear” and covering a building destroyed by fire and upon which appellee had a lion. The defenses were that the policy had never been delivered as an operative instrument, or, if so, that it had later been mutually canceled before the loss. To this latter defense appellee replied that, if there had been a cancellation by agreement, but which was denied, the same had been induced by a mutual mistake of fact. The issues thus indicated were submitted to a jury, which returned a general verdict in favor of appellee for the amount specified in the judgment.

For various reasons, to be hereinafter more particularly noticed, appellant here insists that the court should have given a peremptory instruction to find for defendant as requested, and an exception was taken to the action of the court in refusing to give this instruction; but the reason or reasons upon which the requested instruction was based were not .set forth in the bill of exception, nor were reasons assigned in appellant’s motion for a new trial, and appellee therefore objects to our consideration of the assignment on these grounds. This court, and most, if not all, of the other Courts of Oivil Appeals, have held, in accordance with the provisions of the act approved March 29, 1913 (see General Laws 1913, p. 113), that to be available on appeal it must appear that specific exception was made to the action of the court in refusing a special instruction. See Mutual Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974; St. L. & S. W. Ry. Co. v. Wadsack, 166 S. W. 42; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217; Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Elser v. Putnam Land & Development Co., 171 S. W. 1052; Bohn v. Burton Lingo Co., 175 S. W. 173; King v. Gray, 175 S. W. 763. Not only so, but this court has further held that the spirit of the enactment referred to and of our laws relating to hills of exception require that the excepting party should set forth in his bill of exception the specific reasons therefor to the end that the trial court may be properly informed and have presented an opportunity to correct the error, if one was thus made to appear. See G., C. & S. F. Ry. Co. v. Loyd, 175 S. W. 721. We yet entertain the views expressed in the decisions cited and under ordinary circumstances would feel no hesitation in sustaining appellee’s exception to appellant’s assignment to the action of the court in refusing to give the peremptory instruction; but since the decisions cited, as we are informed, our Supreme Court has granted a writ or writs of error indicating that the statute in force prior to the act of 1913 above referred to is controlling. This prior statute (Revised Statutes 1911, art. 1974) provides that when instructions are requested the judge shall note distinctly which of them he gives and which he refuses and shall subscribe his name thereto, and that such instructions “shall be filed with the clerk, and shall constitute a part of the record of the cause, subject to revision for error without the necessity of taking any hill of exception thereto.” Of course, as appellant now contends, if this article of the statute controls, and if it be unnecessary to take an exception to the action of the court in refusing an instruction, it necessarily follows that .appellee’s objection to the assignment under consideration must fall. We have therefore concluded, in view of the uncertainty thus indicated, to consider appellant’s first assignment of error.

It is first insisted, in effect, that the evidence is wliolly insufficient to support tlie verdict of the jury on the issue of the delivery of the policy. On a former appeal (see 166 S. W. 122) we held that the evidence then presented sufficiently supported a verdict in appellee’s favor upon the issue, and as we think the evidence on the last trial was equally, if not more, forceful. While it is true that no witness testified specifically to the delivery of the policy, yet the evidence in substance was to the effect that appellee had occasion to secure many policies of insurance, and that one Glenn Walker, a brother, was engaged in the insurance business and procured for appellee all original policies that his business necessitated and caused the issuance of all renewal policies that were required; that as to the piece of property in question appellee had procured a policy of insurance in a company going out of business and which for this reason canceled the policy on the property involved in this controversy a year before its expiration by the terms used; that thereupon the policy sued upon in this case was secured as a substitute for the canceled policy referred to; that by the practice of the insurance office conducted by Glenn Walker, which was just across the hall from the ofiice of appellee, insurance policies when issued or when renewed by the insurance agency were brought into appellee’s office and placed upon the desk or delivered to whomsoever was in the office; that the policy in question was found among others of the ap-pellee’s policies. One or more of appellee’s witnesses distinctly testified to the fact that the policy in question had been in appellee’s office and among his other insurance papers some time, perhaps a week or two weeks, before the loss under consideration. True, there was testimony in behalf of the appellant to the effect that after the fire the policy was discovered among other papers of the appellant insurance company indorsed “canceled,” and Glenn Walker, the agent, testified to the effect that he took the policy into the office of appellee for the purpose of delivering it, but that appellee then mentioned the fact that he had commenced foreclosure proceedings upon the premises in controversy, whereupon he (Glenn Walker) informed him that that fact voided his policy, and thereupon, as he (the witness) remembered, he returned the policy to the company directing its cancellation. This witness, however, was not positive in his testimony to the effect that the policy was in fact not delivered, and there was further testimony in behalf of appellee to the effect that the day of the conversation as related by the witness Glenn Walker and upon which, as Glenn Walker testified, he was informed of the foreclosure proceedings, was several days, perhaps a week or more, after the policy in question was known to be among appellee’s other policies and handled by his ofiice force. There was also testimony to the effect that one William Riggs, another representative of the appellant company, came into appellee’s office and called for the policy in question, and that it was delivered to him by one of appellee’s employes; Riggs at the time not stating what he wanted with the policy. While Riggs denied that he thus secured the policy from the possession of appellee and that both Riggs and Glenn Walker gave a different account of its return to the appellant’ company, yet on the whole we cannot say, as appellant insists, that the evidence is only susceptible of the construction that the policy was never delivered. It is to be remembered that in determining this question effect must be given to the testimony most favorable to appellee, and, thus viewing the evidence, we feel that it cannot be said that the court committed error in refusing the peremptory instruction and in submitting the issue of delivery to the jury. No complaint has been made of the terms in which the issue was submitted, and we think the verdict of the jury on the issue must be sustained.

Appellant further insists that the peremptory instruction should have been given for the reason that the undisputed evidence shows “that the contract had been canceled by mutual agreement several weeks prior to the date of the fire”; but the evidence, as we think, by no means requires this conclusion. Glenn Walker, himself, testified that:

“I wrote the company at the time this matter came up to the effect that the policy was never delivered, but that before the policy was delivered I ascertained from conversation with my brother that foreclosure proceedings wore pending against the property, and I refused to deliver the policy and took it back and had it canceled. I never did claim to them that this policy after it was in effect, and after it was delivered, was canceled by mutual consent between me and Herbert Walker. I never wrote or claimed any «such thing as that to them, and I never claimed to them that, the policy being in effect, I had given regular notice of cancellation to Herbert Walker and had taken up the policy at the end of ten days. It was my understanding that I had not delivered that polios’’, and that was my belief, and I definitely and certainly recollect that I never did undertake to cancel this policy regularly under its provisions as being an existing policy; and it is furthermore true, under no circumstances, and never did I undertake to claim to my company or anybody that Herbert (appellee) and I had canceled this policy by mutual consent after it was in effect. The only thing I claim, and the only thing I ever claimed, is that I did not deliver the policy to him at all.”

This testimony is wholly inconsistent with the theory of a mutual cancellation of the policy. This defense rests, so far as we have been able to ascertain, upon the testimony of appellee, to the effect that, when Glenn Walker came into his office and he told him that he had been required to institute foreclosure proceedings upon the property in question, Glenn Walker replied:

“ ‘That renders your policy void.’ * * * I did not tell him anything. I took it for granted the statement that the policy was void was correct. * * * I did not feel there was anything for me to agree to. It was not my understanding from that conversation with my brother that, during the time these foreclosure proceedings were pending, I had no insurance under this policy, in that I was performing an act that the insurance company said voided my choice to exercise that option; if they chose to exercise the option they had, it would void my policy. I did not know a thing about their right. I just took that statement for granted, that Glenn was right on it. Glenn did not say anything to me as to whether the company would then or in the future, if I did not get the title back, exercise the option to declare it void; he said the policy was void, and I just took that statement for granted and did not consider whether it was right or wrong, or whether ho was asking me to agree to the evidence of it. He never used the word ‘canceled’ in any way and never wrote me; never used that word at all. * * * He did not tell me anything at that time as to what would be done or should be done with the policy itself. He made no statement or requests to me with reference to the physical policy, at that time. He made no other remark about that than what I have stated. In other words, he did not say, ‘Well, I am going to take this policy back and cancel it,’ or anything like that. There was no statement like that, just merely the words, ‘Foreclosure proceedings voids your policy.’ ”

On redirect examination lie further testified:

“I told Glenn, at the time I had this conversation with him, that this suit (the foreclosure suit) might be ended in a few weeks, and he said that would be all right, and I understood that whilei foreclosure proceedings were pending, if a fire occurred, I could not get my money, and I understood, also, if the suit was settled right, that that policy would be a good policy. In other words, I will explain it by a circumstance that frequently happens: If you get a policy -and you put gasoline in your house, that policy is void; if you move the gasoline away, your policy is all right, you have a policy still, although, really at one time, your policy was void.”

While Glenn Walker, the agent, testified that it was the general business policy of his company not to insure premises covered by liens and to cancel policies upon foreclosure proceedings, the policy udder consideration in fact contained, among other special provisions, one to the effect that the policy in question “should not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by foreclosure or other proceedings or notice of sale relating to the property.” So that, on the whole, we do not think that appellee’s mere silence or acquiescence in the erroneous statement of Glenn Walker that the foreclosure proceedings rendered the policy void requires the conclusion of a mutual cancellation of the policy, as alleged and urged by the appellant in this case, and it is quite clear under the evidence that there was no cancellation of the policy under its terms providing that this might be done upon giving ten days notice, etc. Nor, even if it had been made an issue in the pleadings, would appellee’s' mere silence or acquiescence in the mistaken statement of Glenn Walker estop him in the absence of some proof that such silence or acquiescence had the effect to mis-1 lead the appellant company to its injury. See East Texas Fire Ins. Co. v. Perkey, 89 Tex. 604, 35 S. W. 1050.

The foregoing conclusions, of course, • render wholly immaterial the further contentions relating to the question of whether the mutual agreement to cancel was avoided because of a mutual mistake of fact on the part of both appellee and .Glenn Walker. Nor do we think there is any force in appellant’s further contention that Glenn Walker was such agent of the appellee in the procurement and renewal of the policies as to make his act in indorsing the policy canceled the act of appellee. Appellant’s first assignment of error and all propositions: thereunder are, accordingly, overruled.

Appellant further assigns error to the action of the court in permitting the appellee to testify, over its objection that the testimony was irrelevant and incompetent, to the effect that he did not understand from the conversations of Glenn Walker that he (Glenn Walker) was proposing a mutual cancellation of the policy, but that he merely understood that if a fire occurred, during the foreclosure proceedings', he could not get. his money, and that if the foreclosure suit was settled that the policy would be valid, etc. The conversations, however, already above noted do not necessarily import a contract, and we are of the opinion that the court properly ruled in this matter, for the essence of a contract is that the minds of the parties thereto must meet on the same thing, and the intent or understanding of the parties is necessarily an essential element, and where the agreement relied upon is to be deduced, if at all, from conversations-of a more or less indefinite character and that may or may not support the contention of a contract, the understanding of the parties — the sense in which the terms were received, the construction given the terms — is relevant when the conversations or declarations at the time, under all of the circumstances, are reasonably susceptible of the-construction given them and acted upon by one of the parties to the asserted agreement. Even in cases where the foundation of the alleged contract is in writing and the words, therefore, ascertainable with certainty, yet, if the terms used are ambiguous or indefinite or susceptible of different conclusions, the practical interpretation given the instrument by the parties may bp proved and, as said in the authorities, is often entitled to great weight. 3 Jones on Evidence,. § 453.

We are of the opinion further that the evidence supports the verdict of the jury in ap-pellee’s favor, and, no other question being presented by the assignments, the judgment, will be affirmed.
      (g^sFor other cases see same topic and KEY-NUMBlMt in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    HILL v. STAATS.
    (No. 8416.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 24, 1916.)
    1. Appeal and Eerob <&wkey;263(l) — Review-Scope — Questions Considered.
    Although the Court of Appeals considers exceptions to rulings on requested instructions necessary, yet an assignment of error without such exception will be considered where the Supreme Court’s action in granting writs of error renders the necessity of an exception doubtful.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. &wkey;263(l)J
    2. Master and Servant &wkey;>302(2) — Injury to Third Person — Scope • op Employment.
    Where defendant’s chauffeur, after leaving defendant’s wife and children at a circus, drove away in disobedience of specific instructions, and ran down plaintiff, held, that defendant was not liable, since the chauffeur was acting outside the scope of his employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. &wkey;302(2)J
    3. Evidence <&wkey;589 —Weight — Interested Parties.
    Although the entire testimony as to the instructions given the chauffeur came from defendant and his wife, yet their uncontradicted testimony cannot be disregarded where no discrediting circumstances appear.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. <&wkey;>5S9.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by S. D. I-Iill against C. G. Staats. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. W. Stitt, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short, of Ft. Worth, for appellee.
   BUCK, J.

Appellant sued appellee to re-

cover damages for personal injuries alleged to have been caused by defendant’s automobile, driven by the latter’s servant, running into a wagon in which plaintiff was riding on East Front street in the city of Ft. Worth. He alleged that the automobile of defendant was being driven recklessly and at an unlawful rate of speed, to wit, 30 miles an hour, and that the same was being driven under defendant’s authority and direction. He alleged damages for injury to wagon and horse, as well as for personal injuries.

Defendant, among other defensive pleadings, denied that at the time of the accident the driver of the automobile was acting under his authority, but alleged that on said day the defendant, before he left home, had instructed the driver, or chauffeur, to driye defendant’s wife and children to the circus grounds, located in the eastern part of the city, near East Front street; that he instructed the chauffeur not to leave the place where Mrs. Staats and children would alight from the automobile to enter the circus until Mrs. Staats was ready to return home, and not to move the car from said position during the interval, and that said driver was specifically and emphatically told not to use said automobile for his own pleasure or purposes in any way or manner whatsoever; that, in addition to what the defendant, himself, had said to the driver, when Mrs. Staats left the c-ar on East Front street near the circus grounds,, she instructed the chauffeur not to move the ’ automobile while she was gone, but to leave it in the exact place where they alighted; that when she returned to the car she found It in practically the same place where she left it. Defendant pleaded therefore that, if the injuries to plaintiff were caused through the acts of negligence of the defendant’s driver, such driver was not engaged in any work or labor for the defendant, and was not performing any manner of employment for him, but, on the contrary, was acting contrary to the express instructions and • directions of the defendant, and hence defendant would not be liable for any injuries inflicted by the driver while so acting or engaged.

Upon a trial before a jury plaintiff introduced evidence amply sustaining the theory of negligent and reckless driving on the part of defendant’s chauffeur while driving defendant’s car, and also upon the question of substantial injuries having been inflicted upon plaintiff by reason of the accident. Defendant and his wife testified to the instructions given to the chauffeur not to leave the vicinity of the circus grounds during the time that Mrs. Staats and the children were in attendance upon the circus, in effect and substance sustaining the defensive allegations pleaded upon this issue. Upon this issue the evidence was úncontradieted. In fact, the testimony introduced by the plaintiff as to the driver’s recklessness and negligence was likewise uncontroverted. The evidence showed that, at the time of the accident, the automobile was coming from the direction of the business section of the city and going in the general direction of the circus grounds; the collision occurring between 3 and 4 o’clock in the afternoon, and at a place several blocks from the show grounds. The circus opened about 2 o’clock p. m., and closed about 6 o’clock p. m. Hence it is evident that the accident occurred while defendant’s family were attending ■ the circus. The driver did not testify, and no positive evidence was introduced to show where he had been during his absence from the place where he was told to wait, nor the reason for his leaving said place. One witness stated that at the time of the accident the chauffeur was racing with another negro driver.

Both plaintiff and defendant moved for a peremptory instruction, the former requesting that only the question of the amount of damages be submitted as issuable. The court instructed a verdict for defendant and overruled plaintiff’s motion for a, peremptory instruction.

In tlie statement of facts it is shown that the following proceedings occurred:

“The Court: Defendant’s motion for peremptory instruction is granted. I will give tlie plaintiff an exception.
“Mr. Stitt (counsel for plaintiff): We will file a motion for new trial. I do not care for a notation of an exception at this time. Just enter the verdict and we will file a motion.”

Plaintiff did file a motion for new trial, which was by the court overruled, and plaintiff appealed to this court; the case being given the docket number 8325.

Subseciuent to the lodgment of the transcript in this court, appellee filed a motion in tlie trial court to strike out bill of exception No. 3, shown in the transcript of cause No. 8325, and which recited that an exception to the action of the court in overruling plaintiff’s motion for peremptory instruction and in granting defendant’s motion for instruction was reserved. Defendant alleged as grounds for his motion that in fact plaintiff at the time the ruling was made, reserved no exception to the action of the court in this regard, and that the recitation in the bill of exception that an exception was taken was incorrect. Plaintiff replied that bill of exception No. 3, as shown in the transcript in cause No. 8325, correctly recited the facts, and that same had been properly allowed by the court with defendant's approval, and had been duly approved by the court. Defendant, in answer, stated that, if in fact said bill of exception had been agreed to by counsel for defendant, the same was done under a mutual misapprehension of fact as to the reservation of an exception by plaintiff. The court, having heard the evidence upon this issue, granted defendant’s motion to strike, from which order and ruling the plaintiff appealed, and, upon the transcript having been filed in this court, tlie case was given the docket number of 8110. Upon motion by plaintiff the two cases were consolidated -by this court and given the docket number of 8410.

We have concluded that we are not called upon to determine the correctness vel non of the court’s action in sustaining defendant’s motion to strike out the bill of exception mentioned. In tlie late ease, not yet published, No. 8387, entitled Glens Falls Insurance Co. v. Herbert G. Walker, 187 S. W. 1036, this court, speaking through Chief Justice Conner, said: cific exception was made to the action of the court in refusing a special instruction. See Mutual Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974; St. L. & S. W. Ry. Co. v. Wadsack, 166 S. W. 42; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217; Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Elser v. Putnam Land & Development Co., 171 S. W. 1032; Bolin v. Burton-Lingo Co., 175 S. W. 173; King v. Gray, 175 S. W. 763. Not only so, but this court has further held that the spirit of the enactment referred to, and of our laws relating to bills of exception, require that the excepting party should set forth in his bill of exception the specific reasons therefor, to the end that the trial court may be properly informed and have presented an opportunity to correct the error, if one was thus made to appear. See G., C. & S. F. Ry. Co. v. Loyd, 175 S. W. 721. We yet entertain the views expressed in tlie decisions cited, and under ordinary circumstances would feel no hesitation in sustaining appellee’s exception to appellant’s assignment to the action of the court in refusing to give the peremptory instruction; but since the decisions cited, as we are informed, our Supreme Court has granted a writ or writs of error indicating that the statute in force prior to tlie act of 1913 above referred to is controlling. This prior statute (Revised Statutes 1911, art. 1974) provides that, when instructions are requested, the judge shall note distinctly which of them he gives and which he refuses and shall subscribe his name thereto, and that such instructions ‘shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error, without the necessity of taking any bill of exception thereto.’ Of course, as appellant now contends, if this article of tlie statute controls and if it be unnecessary to take an exception to the action of the court in refusing an instruction, it necessarily follows that appellee’s objection to the assignment under consideration must fall. We have therefore concluded, in view of the uncertainty thus indicated, to consider appellant’s first assignment of error.”

“For various reasons, to be hereinafter more particularly noticed, appellant here insists that the court should have given a peremptory instruction to find for defendant as requested, and an exception was taken to the action of the court in refusing' to give this instruction; but the reason or reasons upon which the requested instruction was based were not set forth in the bill of exception, nor were reasons assigned in appellant's motion for a new trial, and ap-pellee therefore ob.ieets to our consideration of tlie assignment on these grounds. This court, and most, if not all, of the other Courts of Civil Appeals, have held, in accordance with the provisions of the act approved March 29, 1913 (see General Laws 1913, p. 113), that to be available on appeal it must appear that spe-

In line with the policy thus ennn dated, we have concluded that defendant’s assignment attacking the action of the court in refusing plaintiff’s motion for a peremptory instruction and granting defendant’s motion to the same effect should be considered, with or without exception being reserved to such action.

Hence, there is presented to us only one question for consideration, to wit, did the uncontroverted testimony establish defendant’s contention that at the time of the accident defendant’s driver did not hear .to defendant such a relation as would make defendant liable for injuries to third persons negligently inflicted by said driver?

In 2 Mechem on Agency (1914 Ed.) § 1858, in discussing the liability of the principal for the agent’s torts and crimes, it is said:

“In all of the discussions of this question, it is constantly assumed, and it is always a condition precedent, that the relation of principal and agent, or master and servant, shall actually exist. That this is so seems often to be easily overlooked, and it cannot very well be unduly emphasized. Two quotations from a single court, out of many similar ones, may therefore be justified.
. “ ‘A person, either natural or artificial, is not liable for the acts of negligence of another, unless the relation of master and servant or principal and agent exists between them.’
“ ‘There can be no recovery against one charged with negligence unon the principle of respondeat superior unless it be made to appear that the relation of master and servant in fact existed, whereby the negligent act of the servant was legally imputable to the master.’
“The relation must also exist at the time in question. If it had not yet begun, or if it had already terminated, no liability can ordinarily arise.”’

In the case of Goodrich v. Musgrave Fence & Auto Co., 154 Iowa, 637, 135 N. W. 58, it was held that where a man was allowed to take an automobile with a view to showing it to a possible purchaser, and, after having done so, without selling it, to keep it several days without further authority, 'during which time, while using it for his own purposes, he negligently injured the plaintiff, there was neither such a relation of agency or of master and servant as would make the owner liable.

In Robards v. Bannon Sewer Pipe Co., 130 Ky. 380, 113 S. W. 429, 18 L. R. A. (N. S.) 923, 132 Am. St. Rep. 394, the Kentucky Court of Appeals said:

“The master is liable only for the authorized acts of the servant, and the root of his liability for the servant’s acts is his consent, express or implied, thereto. When the master is to he considered as having authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty. Where authority is conferred to act for another without special limitation, it carries with it, by implication, authority to do all things necessary to its execution; and when it involves the exercise of the discretion of the servant, or the use of force towards or against another, the use of such discretion or force is a part of the thing authorized, and, when exercised, becomes, as to third persons, the discretion and act of the master, and this although the servant departed from the private instructions of the master, provided he was engaged at the time in doing his master’s business, and was acting within the general scope of his employment. It is not the test of the master’s liability for the wrongful act of the servant from which injury to a third person has resulted that he expressly authorized the particular act and conduct which occasioned it. In most cases where the master has been held liable for the negligent or tor-tious act of the servant, the servant acted, not only without express authority to do the wrong, but in violation of his duty to the master. It is in general sufficient to make the master responsible that he gave to the servant an authority, or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master’s orders.”

See, also, Acme Laundry v. Weinstein, 182 S. W. 408; Weber v. Lockman, 66 Neb. 469, 92 N. W. 591, 60 L. R. A. 313.

The question of extreme difficulty in the consideration of the phase of the subject now under discussion is to determine what constitutes the “course of employment” in cases-relating to master and servant, or the “scope of the authority,” in eases of agency. As is said in 2 Mechem on Agency, § 1879:

“The utmost that can ordinarily be said is that a servant is acting within the course of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed or any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act or a natural, direct, and logical result of it. If in doing-such an act the servant acts negligently, that is negligence within the course of the- employment.”

In the cases of G., H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, an engine dispatcher having charge of the engines and machinery in a railway roundhouse, and handling a hose conveying a blast of compressed air, provided to work certain machinery, but which, as an experiment, he was using instead of a water hose to extinguish fire in an engine, turned the air blast, in sport, and without intending injury, upon the person of an engine wiper, his subordinate in the roundhouse, inflicting injuries which caused his death. It was held that in such an act he was not'engaged in the employer’s service and that the railway company was not liable. In an exhaustive opinion in this case, Associate Justice Williams of our Supreme Court said:

“The fact that Nicholls, while holding the hose, conceived the purpose of using it, and did use it upon the employes, in sport, is undisputed and is wholly inconsistent with, any assumption that he was then in any way attempting to serve the defendant. His act was a clear departure, for the time, from that service, and' the quickness with which it was done cannot be made the test. If the turning aside from the master’s business be only for an instant, so that it be complete, the authorities agree that there is no liability on his part for the servant’s act. 1 Thomp. on Neg. 526, and cases there cited. If a miner, or butcher stand with pick or knife raised, to dig or to stab an animal, for the master, and, seeing his enemy before him, turn the tool upon him as a weapon to kill him, would any one argue that the master should be held accountable for the death? Where is the difference if the instrument be used merely to frighten for the amusement of the servant? The only difference between such cases and other personal wrongs committed by persons who happen to be employes of other persons is the fact that in the cases supposed the servants misuse implements intrusted to them by their masters. But that, certainly, is no reason for charging the master, as cases almost numberless will show. I. & G. N. Ry. Co. v. Cooper, 88 Tex. 610 [32 S. W. 517]; Little Miami Ry. v. Wetmore, 19 Ohio St. 110 [2 Am. Rep. 373]; Golden v. Newbrand, 52 Iowa, 59 [2 Ñ. W. 537, 35 Am. Rep. 257] ; Howe v. Newmarch, 12 Allen [Mass.] 49.”

In the Cooper Case, cited in the opinion just quoted, an engineer and fireman in charge of a freight train permitted Cooper to ride in the cab. They had no authority to do so. In playing a practical joke upon Cooper, they scalded him, inflicting a serious-bodily injury, and it was held that the act of the engineer and fireman causing the injury was not in furtherance of the business of the railway company nor in the accomplishment of the object for which they were employed, and that the railway company was not liable.

In I. & G. N. Ry. Co. v. Anderson, 82 Tex, 516, 17 S. W. 1039, 27 Am. St. Rep. 902, the same principle is enunciated by Judge Gaines in the following words:

“To hold the master liable for the acts of his servant, it is not necessary that the servant should have authority to do the particular act. The act of the servant may be contrary to his express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the duty he is engaged to perform, if wrongful and to the injury of another, the master is liable, although he may have expressly forbidden the particular act. But whether the act in question can be implied from the general authority conferred upon the servant must in general depend upon the nature of the service he is engaged to perform and the circumstances of the particular case.”

In Branch v. I. & G. N. Ry. Co., 92 Tex. 288, 47 S. W. 974, 71 Am. St. Rep. 844, where a railway company had intrusted the care of a hand car to a section foreman, and the plaintiff was injured at a public crossing by a collision with such hand car, through the negligence of the foreman while operating it upon a private errand, and not in the performance of a duty to the company and against its orders, it was held that the railway company was not liable. Also, in the case of I. & G. N. Ry. Co. v. Yarbrough, 39 S. W. 1096, where railroad employés in charge of the locomotive sounded a whistle without any proper occasion therefor, but for the purpose of frightening a horse near the track:, and not in the discharge of any duty, it was held that the railway company was not liable for damages caused thereby; such acts not being within the scope of their employment.

In the case of Tyler v. Stephan’s Adm’x, 163 Ky. 770, 174 S. W. 790, under a state of facts very similar to that disclosed in the instant case, the Kentucky court of last resort, in holding that the master was not liable for an accident occurring while the driver of the automobile was returning from a trip or journey taken, not in the furtherance of his employer’s business, but for his own pleasure, said:

“It was still his own journey, undertaken exclusively for his own purposes, and for the accommodation of Gudgel. I-Ie was not, therefore, engaged in the master’s work at the time the accident occurred. It follows that the trial court should have directed a.verdict in favor of the defendant.”

See, also, Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N. S.) 93; Cordner v. B. & M. R. Co., 72 N. H. 413, 57 Atl. 534; Colwell v. Ætna Bottle & Stopper Co., 33 R. L 531, 82 Atl. 388; Patterson v. Kates (C. C.) 152 Fed. 481; Fleischner v. Durgin, 207 Mass. 435, 93 N. E. 801, 33 L. R. A. 79, 20 Ann. Gas. 1291; Symington v. Sipes, 121 hid. 313, 88 Atl. 134, 47 L. R. A. (N. S.) 662; Morier v. Railway Co., 31 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793; Foster-Herbert Co. v. Pugh, 115 Tenn. 688, 91 S. W. 199, 4 L. R. A. (N. S.) 804, 112 Am. St. Rep. 881.

In Colwell v. .¿Etna Bottle & Stopper Co., supra, a case very similar to the case at bar, the court said:

“When he (the chauffeur) first arrived at the garage on Bradford street, it was his duty, 'then, to take the automobile into the garage, and wash it, and put it up for the night. That was all that he was instructed or expected to do. He had no authority, either express or implied, to use the machine for the benefit of another employe, or for his own convenience in going to get his supper. His use of the automobile from the time he left the Bradford Street garage, and during the whole circuit that he made from that point to Potter’s avenue, and from there to the restaurant on Westminster street, and from there back to the Bradford Street garage, was unauthorized and beyond the scope of his employment.”

Without citing further authorities, it is sufficient to say that we find that the trial court did not err. in directing a verdict for defendant upon the facts shown. This conclusion is reached with the knowledge that the entire testimony upon the question of the instructions given to the chauffeur came from the lips of defendant and his wife, who both may be said to be interested parties. The testimony of appellee and his wife was positive and unequivocal, nor is there any circumstance disclosed in the record tending to discredit or impeach such testimony. See Felts v. Bell County, 103 Tex. 616, 132 S. W. 123; Malone v. Bank, 162 S. W. 369; Christensen v. Christiansen, 155 S. W. 995; Brooks v. Davis, 148 S. W. 1107; Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788; Starkey v. Wooten Gro. Co., 143 S. W. 692; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572.

Finding no reversible error, all assignments of error are overruled, and the judgment of the trial court is affirmed.
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