Not being able to agree with the majority, I feel that it is my duty to express my views in a dissent.
This is the second time this case has been before us. See 143 S.W.2d 401, opinion by this court, and 139 Tex. 29, 161 S.W.2d 459, 461, opinion by Commission of Appeals, adopted by the Supreme Court, reversing the judgment of the Court of Civil Appeals, on the theory that the evidence raised the issue of whether or not Countryman was acting within the scope of his employment by the Building Company when he "struck" Lowry, the plaintiff, and caused him to fall and receive injuries in the fall.
Just as in the former trial, Lowry here bottoms his case on the allegation that *Page 987 "Countryman struck plaintiff in the back and on the shoulder and indefiant tones accompanying said blow demanded of plaintiff why he did not get to work". (Italics the writer's.)
All of the allegations made on the first trial raising issues that were discussed by the Supreme Court and determined without evidence to support them were made at the last trial, but all issues were abandoned by the plaintiff excepting those disclosed in the opinion of the majority.
The writer thinks it well to observe that on the first hearing the jury found: "That in causing the plaintiff to fall on the occasion of the accident Countryman was not acting in playfulness and that his action was not personal as distinguished from the performance of the duties which he was engaged by the defendant to perform."
This finding tended to support plaintiffs allegation to the effect that Countryman struck plaintiff and in defiant tones accompanying the blow demanded of plaintiff why he did not get to work.
The writer is of opinion that the allegations made and the finding of the jury thereon must have largely determined the conclusions reached by the Supreme Court. In its opinion this language is used: "If Countryman had authority, express or implied, to supervise the work with respect to hastening its completion and exceeded his instructions or used unlawful force to accomplish such purpose, his act may be said to be in the course of his employment * * *. If Countryman turned aside from the work of his master to engage in sport or playfulness for his own amusement, he was not for the time being acting for the master and the master is not liable for the resulting injury."
It occurs to the writer that the last quoted sentence of the opinion is decisive of the case in the light of the jury's findings on the last trial.
In answer to issue No. 6, "Do you find from the evidence that at the time of the occurrence between Countryman and the plaintiff on September 2, 1938, that Countryman's act was intended by him only as a friendly or social gesture on his part?" the jury said, "Yes."
The writer does not believe that the subsequent finding either adds anything to or subtracts from the finding just quoted.
The subsequent issue and finding thereon are: "Issue No. 7: Do you find from the evidence that at the time of the occurrence between Countryman and the plaintiff on September 2, 1938, Countryman's act was intended by him to have any effect on the performance of the painting work?" Answer: "Yes."
In the first place the answer to the last question is not supported by the evidence. The plaintiff was an independent contractor and, according to his own testimony, was neither doing, nor intending to do, any work on the defendant's building. He had employed a man to finish up the work; the man was on the job when plaintiff appeared on the scene, and plaintiff testified that he was instructing this man as to the work being done; that it was almost completed and he told the man to come to another job to which plaintiff was then going as soon as he left defendant's building.
Under plaintiff's plain and uncontradicted testimony, Countryman's act could not have had any bearing on the completion of the paint job.
If plaintiff had been at work, at the time, or about to go to work, the situation might be said to have a different "slant", but how can it be reasonably said that, in the light of the undisputed facts, Countryman could have intended to hurry the doing of work that plaintiff was not only not doing, but which he had employed another to do, and which his employee was then doing?
To permit this finding to stand, in the light of the facts adduced, is to permit the jury to find that Countryman had something in his mind, some intention, that finds its basis in mere speculation on the part of the jury, a mere inference, at best.
In the second place, can it be said that, if this last finding is to stand, there is not a clear conflict in the verdict?
How can we safely say that a jury may find "that Countryman's act was intended by him only as a friendly or social gesture on his part", and permit the jury to also find that the "act was intended by him to have effect on the performance of the painting work ?"
The adjective "social" means: "Of or pertaining to companionship or mutual relationship of more or less like and equal individuals; relating to the natural understanding and intercourse of individuals whose lives are distinctly shaped with *Page 988 reference to one another." And "gesture", when used in connection with the adjective "social", means: "A motion of the body or limbs expressive of sentiment."
In the light of the meaning of the words used in the charge and the finding made by the jury on the charge, how can it be said that the act of Countryman was one that could be rightfully interpreted as something done within the scope of Countryman's employment and for which his master must be held liable?
The plaintiff was an independent contractor. He could go to work when he pleased to do so and quit work at his will. There is no evidence tending to show that Countryman ever attempted to instruct plaintiff as to the method or manner of doing the work, or that he had any authority to do so.
Nor is there any evidence tending to show that Countryman ever attempted to direct the plaintiff concerning the hours that he was to work or the time when he should go to work, or to quit for the day; and there is no evidence tending to show that Countryman had any such authority over plaintiff.
According to plaintiff's testimony, he had the right to work day and night, if he cared so to do, and he exercised his right in this regard.
Under the established facts in this record, Countryman's act could not have had any bearing on the work that was being done and he was not then acting within the scope of his employment.
This is emphasized, unmistakably, by the definition of "scope of employment" given to the jury as a guide to answering issue No. 4. The trial court said: "An employee is acting within the scope of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed, or an act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the act, or a natural, direct and logical result of it."
There can be no contention that the act of Countryman in slapping plaintiff on the back was "an act consciously and specifically directed" by the master, and we must turn to the remaining portions of the definition for further light on the jury's right to make the finding disclosed.
How can it be successfully contended that slapping the plaintiff on the back was "an ordinary and natural incident or attribute of the act"?
Here we are asking the jury to find that the slapping of the plaintiff on his back was an ordinary and natural incident, or an attribute of the act of supervising the paint job.
The definition ends with, "or a natural, direct and logical result of it".
Here we are asking the jury to find that the slapping of the plaintiff on his back was a "natural, direct and logical result" of the act of supervising the paint job.
The definition is intended as a guide to the jury in finding the answer to the issue.
Under this definition and the facts of this case the judgment should not be permitted to stand. There is no evidence to support the finding that Countryman was acting within the scope of his authority. The judgment should not be permitted to stand. It hangs on a thread that is too slender and gossamer like. It permits the jury to enter the realm of mere speculation and to make its findings on inferences not supported by the charge of the court and the facts disclosed. *Page 989