
    CHRONISTER LUMBER CO. v. WILLIAMS.
    (No. 761-4359.)
    (Commission of Appeals of Texas, Section A.
    Dec. 1, 1926.)
    1. Corporations <®=»383 — Corporation can act only through its agents.
    Corporation, as artificial being, can act only-through agency of men or women.
    2. Death <g=^33 — Corporation is liable for exemplary damages for homicide, caused by gross neglect of employee acting within scope of authority (Const, art. 16, § 26).
    Liability of corporation to surviving spouse or children for exemplary damages, for homicide committed by corporation through gross neglect, under Const, art. 16, § 26, depends upon whether particular act of employee complained of was within scope of his authority, so as to be considered the act of corporation.
    3. Death &wkey;>33 — Gross negligence of foreman, in operating train causing death, made corporation liable for exemplary damages (Const, art. 16, § 26).
    Where duty of supervising and running logging train was delegated to foreman by corporation, gross negligence of foreman, in operation thereof causing death, made corporation liable to widow for exemplary damages under Const, art. 16, § 26; acts of foreman being within scope of authority.
    4. Death <&wkey;33 — Relation to corporation of servant guilty of gross negligence causing death need not he official (Const, art. 16, § 26).
    To render corporate master liable for exemplary damages for gross negligence of servant causing death under Const, art. 16, § 26, no official relation need exist between master and servant.
    Appeal from Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Mrs. Bob Williams against the Chronister Lumber Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified questions.
    Questions answered.
    Morris, Sewell & Morris, of Houston, and Harris & Harris, of Austin, for appellant.
    Adams & Moore, of Nacogdoches, for ap-pellee.
   NICKELS, J.

Mrs. Bob Williams, widow of Bob Williams, brought the suit against Chronister Lumber Company, a corporation, and sought recovery of exemplary damages" upon allegations that his death was caused by ■the gross negligence of the corporation (his employer). The matter of compensatory damages is not presently involved. From a judgment allowing that recovery, Chronister Lumber Company prosecuted its appeal, and the ease is now pending in the Court of Civil Appeals, Ninth District. That court has certified questions as follows:

“Question 1; Can the gross negligence of the woods foreman, Harris Anderson, be imputed to appellant, thereby making appellant guilty of gross negligence and liable in exemplary damages to appellee?
“Question 2. Can the gross negligence of Harris Anderson be imputed to appellee’s manager,
S.W. Littlejohn, whom he represented, and whose authority Anderson exercised in Little-john’s absence, and, through Littlejohn, to appellant, making it guilty of gross negligence, and thereby liable to appellee in exemplary dam■ages?
“Question 3. Did Littlejohn occupy such a relation to appellant as to make it liable in exemplary damages for his gross negligence, and, through him, liable for the gross negligence of the foreman, Harris Anderson, who exercised his authority in his absence, in the particular field of his employment — that is, as woods foreman?
“Question 4. In Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 306, you said: ‘Exemplary damages are allowed only for the willful act, omission, or gross negligence of the “defendant” to the suit, if a corporation, for the willful act, omission, or gross negligence of one representing it in its corporate capacity, as a corporate officer, but not of a mere ordinary servant or agent.’ Under the proposition of law thus announced, did Harris Anderson represent appellant in its ‘corporate capacity,’ so that his gross negligence would be imputed to appellant, a corporation, thereby making it liable in exemplary damages for his gross negligence? Did Little-john represent appellant in its ‘corporate capacity,’ in the sense in which that expression is used in the foregoing legal proposition?
“Question 5. On the issue of gross negligence and exemplary damages, what must be the official relation of the guilty servant to his master, a corporation, to make it liable in exemplary damages for his gross negligence?”

A digest of the relevant evidence is included in the certificate, and the controlling facts shown will appear in the course of the opinion.

Section 26, art. 16, of the Constitution, declares that:

“Every person, corporation or company, that may commit a homicide, through willful act or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be,” etc.

It will be noted that the provision does not name parents as being amongst those to whom the right of action is given. Whatever rights the surviving parents have depend upon, and are restricted by, the Death Statute (articles 2899-2903, R. S. 1879; articles 469A-4699, R. S. 1911; title 77, R. S. 1925); as to parents, the statute occupies a field not within the bounds of the constitutional provision cited. And this renders Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293, 305, 306, unauthor-itative here. Cowser and wife sued for damages (actual and exemplary) for the death of their adult son, caused by the (alleged) gross negligence of the railroad corporation, then acting by and through its “trainmaster” and train operatives. In respect of punitive damages, at least, they had no cause of action-save that given (and limited) by the Death Statute then in force (articles 2899-2903; R. S. 1879). As said by Judge Bonner, the statute plainly exhibited a material distinction between death caused by act or omission of the “proprietor,” or the “owner,” etc., “of a railroad,” on the one hand, and conduct of the “servant” or “agent” of such “proprietor" or “owner.” As to actual damages, the statute provided, cause of action whether the act or omission was by the one or the other; but, for exemplary damages, it created the right only for the “gross negligence,” etc., “of the defendant.” The suit was against a railroad corporation (i. e. the “proprietor” or “owner” of a “railroad”; it was predicated upon the neglect, etc., of a “servant” or “agent”; and the right to maintain it depended solely upon a statute providing the distinctions noted. Because the petition merely averred that death was caused by “the gross negligence and carelessness of the agents, servants, and employees” of the railroad owner, the trial court sustained a demurrer to the claim for punitive damages, and this action, Judge Bonner held, was correct. Such are the conditions which circumstanced the ruling included in the excerpt quoted by the Honorable Court of Civil Appeals. But the present suit is not maintained against the “proprietor” or “owner” of a “railroad,” and the right to maintain it is not dependent upon the Death Statute, for it was filed by the “surviving widow” against a corporation chartered to manufacture lumber. It is a suit of the nature allowed by section 26, art. 16, of the Constitution. Houston & T. C. Ry. Co. v. Cow-ser, therefore, does not give much assistance in the right determination of the questions certified. It may be marked in passing, however, that, since the ruling was based upon the statutory distinctions mentioned, the opinion seems to imply that, but for those distinctions, the gross negligence of the “trainmaster” and operatives, who were not officers of the corporation, but were “servants” or “agents,” would have been imputable to the corporation.

Unless a corporation is to be held liable in punitive damages for the grossly negligent acts or omissions of any one or more of its servants, agents, employees, and officers, any answer that may be given the questions propounded will, of necessity, involve some distinctions arbitrarily drawn. The Constitution, in the provision quoted, uses the word “corporation” without any qualification whatever. The entity of a corporation is a mere concept resting solely in legal fiction. A corporation is an artificial being, without mind, soul, heart, or life; it may not conceive a purpose, form, or execute a plan, or do an act except through the agency of men or women. Whatever those men and women, acting singly or in confederation, may do in its name or behalf, at least within the general scope of employment, represents it in action in the achievement of the charter purpose. This is true of its janitor and of its president. The felling of trees was essential to the making of lumber, and the manufacture of lumber was necessary to its sale; and each, intermediate (or related) step, was logically and practicably of as much importance as was any other step in accomplishment of the corporate object. The stroke of the woodsman’s axe and the moving of the secretary’s pen equally represented the lumber corporation in movement; each acted for it in his appointed sphere, and each there embodied and gave life to the corporation itself. This finds some illustration in Western Union Tel. Co. v. Czizek, 264 U. S. 281, 284, 44 S. Ct. 328, 329 (68 L. Ed. 682) where the act of a “receiving clerk,” in taking and misplacing a message at a local office of the telegraph company is thus described and given effect:

“The hand that holds the paper technically is that of the company, but no more at the beginning than at the end.”

It might properly have been added that, in so far as the company had a hand with which to receive the message and thus work out its corporate function, the “receiving clerk’s” hand was, in actuality also, its member. Logically, therefore, the gross negligence, as also the omission to use ordinary care, of an employee, of any grade, in respect to an act within the scope of employment, is the gross negligence of the corporation itself, and a question of imputation, except as predicated upon inquiry , into the scope of authority, could not arise. Yet, rightly or wrongly, the doctrine of immunity of the corporation from liability for exemplary damages in some instances has so firmly become stare decisis as to preclude its challenge now. Except for the two extremes, the general field has not been marked out, and within it the boundary line between liability and immunity, in many of its stretches, must yet be platted as the facts of particular cases, as they may arise, require. The straight line across the general field indicated by the excerpt from Cowser v. H. & T. C. Ry. Co., quoted in the certificate, is not the true line, in a comprehensive sense because reason and justice will inject some meanderings.

The test of liability, vel non, we think, is the scope of the employee’s authority. This is shadowed forth in the excerpt quoted by the Court of Civil Appeals from Cowser v. H. & T. C. Ry. Co. Judge Bonner there speaks of “one representing” the Company “in a corporate capacity” — e. g. “a corporate •officer” — and of “a mere servant or agent.” Manifestly, there are “servants or agents” who. represent corporations “in corporate capacities” but who are not “corporate officers” eo nomine, and, because of this, Judge Bonner must have used the phrase “as a corporate officer” merely as.an illustrative example of “one representing it in a corporate capacity.” Moreover, in a subsequent portion of the opinion he makes it plain that the requisite “criminal intent,” so called, of a “servant or agent” may be imputed to the corporation “when the act has been authorized or ratified” by it. He wrote the opinion in Western Union Tel. Co. v. Brown, 58 Tex. 170, 44 Am. Rep. 610, also, and there the rule is thus stated:

“It is now the settled law of this state, that, to make a corporation liable for exemplary damages, the 'fraud, malice, gross negligence, or oppression’ which must authorize and justify the same, must have been committed by the corporation itself, or some superior officer representing it in its corporate capacity; or, if committed by a subordinate servant or agent, the act must have been either previously authorized, or subsequently ratified or approved by the company or such superior officer, after knowledge of the facts.”

And thus it was recognized that the negligent act, or omission, of servant or agent, not a “corporate” or “superior” officer, is the act or omission of the corporation if “previously authorized.” The rule, so restricted, appears to have the approval of the Supreme Court in opinions both prior and subsequent to that in Cowser v. H. & T. C. Ry. Co.; Hays v. H. G. N. R. Co., 46 Tex. 272, 281; International & G. N. R. Co. v. Telephone & Telegraph Co., 69 Tex. 277, 280, 281, 5 S. W. 517, 5 Am. St. Rep. 45.

The scope of the employee’s authority, therefore, being the true subject of inquiry in any case, mere nomenclature exerts no great force in determination of whether or not the corporation is to be held responsible (exémpla-rily) for-the willful or grossly negligent act or omission of a particular officer, agent, or employee. That servant’s title may govern his wage but not the effect of his conduct. The actualities of authority and its user, and not ex parte artificialities, are important.

The Chronister Lumber Company, in the achievement of its corporate purpose, maintained and operated a tram railroad for the transportation of timber and its employees. The maintenance and operation of this facility was an important and substantial element of its plant. To supply timber for its sawmill (another important and essential plant element), it maintained a “woods force” of employees, and, as stated, used the railroad for transportation between forest arid mill. In charge of the “woods force” and the transportation operations it had a “woods foreman,” Harris Anderson. His duty and authority embraced superintendence of the logging and hauling operations, specifically the make-up, speed, and other details of operation of the train. “It was the trainmen’s duty to comply with his orders.” The corporation itself, as owner and user of the railroad, was charged with knowledge of the proper consist and arrangement, speed, etc., of the trains, and with the duty of correct application of that knowledge. This duty it delegated to the “woods foreman,” without instructions, so far as we are advised, as to ' how the duty should be performed. It left to him the authority to place the caboose, in which the men were to ride, at the. front instead of at the rear of the train, if he should so desire, and the power to control the speed, etc., of the train as thus made up. His authority in the premises was superior to that of the train operatives and of the employees who were to ride on the train. The train as arranged, and its operation as arranged, under Harris’ “superintendence” was the train and the operation of the corporation itself, for all this was “previously authorized.” If Harris was negligent in any of these respects, his negligence, whatever its degree,' was that of the corporation.' Such is the inevitable result of applying the principles stated to the facts certified.

The Honorable Court of Civil Appeals states that “the evidence is sufficient to raise the issue and support a jury finding that Harris Anderson was guilty of gross negligence in the manner in which he made up and operated the log train, and that his negligence was the proximate cause of Bob Williams’ death.” We believe, therefore, that question No. 1, as certified, should be answered “Yes.”

We do not perceive the materiality of questions No. 2 or No. 3, except as their subject-matter may be included in question No. 1, and to that extent they should receive the same answer. As to the remainder of the scope of questions Nos. 2 and 3 we are without sufficient data upon which to formulate answers.

The excerpt from Cowser v. H. & T. C. Ry. Co., quoted in question No. 4, has been discussed above, and the answer to be made should be considered in the light of that discussion. The question should be answered “Yes.”

The answer to question No. 5, should be: An “official relation,” as commonly understood, is not requisite; the essential “relation” is that the act and the manner of its doing must have been previously authorized or subsequently ratified.

CURETON, C. J. The opinion of the Commission of Appeals, answering certified questions, is adopted, and ordered certified to the Court of Civil Appeals. 
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