On Appellee’s Motion for Rehearing.
Citing Murray v. Jones (Tex.Civ.App.) 56 S.W.(2d) 276, 277, appellee asserts error in our holding that he could be held liable for a trespass committed by his employee. The cited opinion reads, in part: “It has been definitely settled, and rightfully so, that an action for injury or death caused by negligence, passive or active, cannot be sustained as an action upon an offense, crime, or trespass under the venue statute, unless it affirmatively appears that the defendant acted in person and not by agents. Austin v. Cameron, 83 Tex. 351, 18 S.W. 437; Wettermark v. Campbell, 93 Tex. 517, 56 S.W. 331; Brown v. Calhoun (Tex.Civ.App.) 22 S.W.(2d) 757.”
The cited cases do not support the text in so far as trespass is concerned. The gist of the cited cases is to the effect that malice of the servant, which is essential to a crime or offense, is not imputable to the master unless he authorizes or ratifies the act constituting the crime or offense. If the act, however, was in the line of duty of the servant and (independently of its constituting a crime or offense) it amounted to a trespass, the master would be liable under the doctrine of respondeat superior.
But the decision in Murray v. Jones was not rested upon the above quotation, which may be disregarded as dictum; as appears from the following: “Moreover, we are of the opinion that under the facts alleged, even if the acts complained of were chargeable to appellant instead of his agent, the action does not rest upon a crime, offense, or trespass within the meaning of the ninth exception to the venue statute. The accident was not immediately caused by any active negligence of appellant’s agent, but rather by appellee’s own act in running his motorcycle against appellant’s parked car.”
Commenting upon the first quotation above, the Beaumont Court in Claer v. Oliver, 62 S.W.(2d) 354, 356, say: “An inspection of the opinion shows clearly that Judge Smith, in using the language quoted, had under consideration a contention that venue could be maintained over the defendant in Bexar county because the negligent acts relied on were complained of as being in violation of the law. His view that venue cannot be maintained on such ground is supported by the two cases cited which we have discussed above.”
The holding of the Beaumont Court is thus stated: “To maintain venue over a defendant in the county where the trespass was committed, it is only necessary to show that his agent committed it while acting in the apparent scope of his employment. This has been specifically held by the Texarkana Court of Civil Appeals in two cases. Campbell v. Wylie, 212 S.W. 980; Carver Bros. v. Merrett, 184 S.W. 741, 745.”
Other cases to the same effect are: Page v. Schlortt, 71 S.W.(2d) 886 (by this court); Joy v. Craig, 81 S.W.(2d) 261 (by the Amarillo Court); Weber v. Reagan, 91 S.W.(2d) 409 (by the Waco Court); Dillingham v. Cavett, 91 S.W.(2d) 868 (by the Amarillo Court). Numerous other cases to the same effect are cited in the above cases. For further comment on Murray v. Jones, see Sproles v. Copeland (Tex.Civ.App.) 67 S.W.(2d) 1076.
As pointed out in our original opinion, whether negligence constitutes a trespass within the meaning of the venue statute depends upon its character as being active or merely passive. The intent or animus of the actor is not involved. If the servant is acting within the scope of his employment, his negligence is imputed to the master. And this is so regardless of the character of his negligence, whether active, and therefore a trespass, or merely passive, and not a trespass.
The motion is overruled.
Overruled.