81 S.W. 80
HOUSTON & TEXAS CENT. R. CO. 
v. 
BOWEN.*
Court of Civil Appeals of Texas.
May 21, 1904.
        Appeal from District Court, Freestone County; T. B. Cobb, Judge.
        Action by J. W. Bowen against the Houston & Texas Central Railroad Company. From a judgment in 
favor of plaintiff, defendant appeals. Reversed.
        Williams & Bradley and Andrews & Ball, for appellant. Wm. H. Allen, for appellee.
        RAINEY, C. J.
        Appellee sued appellant to recover damages for the death of his son, Thomas F. Bowen, and the 
mutilation of his dead body. Plaintiff alleged, in effect, that Thomas Bowen boarded a south-bound freight 
train of appellant's at Corsicana, and when near Wortham, in Freestone county, with the train moving 
rapidly, a brakeman, acting within the scope of his authority and in accordance with custom, ordered said 
Thomas Bowen off the train, and for the purpose of expelling him therefrom shot and killed him, either 
willfully, wantonly, and maliciously, or by recklessly firing a pistol. It was further alleged that after the 
killing the brakeman, Galloway, acting within the scope of his authority, for the purpose of removing the 
body from the train, threw it from the car under the moving train, whereby it was greatly mangled and 
mutilated. There were also allegations as to the cruel disposition and drinking habits of the conductor and 
brakeman; that they were reckless, and regardless of the life and safety of others, and wholly unfit for the 
duties assigned them, which was or ought to have been known to defendant, and the negligence of 
defendant in selecting and retaining them caused the death of said Thomas Bowen. Plaintiff's prayer was 
to recover actual damages for loss of contributions by reason of his son's death, and for mental anguish, 
humiliation, and pain caused by the mutilation of his son's body, and exemplary damages on account of 
the character of defendant's employés and their wanton acts. Defendant's special exception to plaintiff's 
prayer for exemplary damages was sustained, and its special exception to allegations of pain and 
humiliation on account of the mutilation of the dead body and prayer for damages therefor were 
overruled, and the cause tried on the amended petition and defendant's general denial and special plea in 
bar, saying, in substance, that plaintiff's son was a trespasser upon its freight train, which was not 
permitted to carry passengers, and that, if any of the acts complained of were committed by defendant's 
employés, such acts were the acts of the brakeman, Galloway, not authorized by, consented to, or ratified 
by defendant, and not done in the discharge of any duty owed defendant, nor in furtherance of its 
business, nor within the scope of any express or implied authority from defendant. The case went to the 
jury alone upon the issue of defendant's liability for mental anguish, pain, and humiliation suffered by 
plaintiff on account of the mutilation of his son's body, the evidence, in the opinion of the court, failing to 
justify submitting the issue of defendant's liability for the shooting of plaintiff's son by the brakeman. On 
September 24, 1903, there was rendered verdict and judgment for plaintiff for $1,000.
        The defendant interposed a special demurrer to that portion of the petition which sought to recover 
damages for the mutilation of the body. This exception was overruled
Page 81
by the court. The court, after hearing the evidence, regarded it insufficient to bind the defendant for the 
killing of the son, and instructed that no recovery could be had against the defendant for the killing, but 
submitted the question as to liability for the mutilation of the body, and the jury rendered a verdict for 
$1,000 against defendant. The mutilation of the body was so intimately connected with the wrongful act of 
Galloway (the brakeman) in killing young Bowen that it cannot be considered as a separate cause of 
action, and under the circumstances the court erred in so submitting it. The measure of damages for the 
killing of another is the pecuniary loss sustained by the death. Mental anguish is not an element of 
damages in such cases. Storrie v. Marshall (Tex. Civ. App.) 27 S. W. 224; McGown v. Ry. Co., 85 Tex. 
289, 20 S. W. 80. It seems that Galloway, in throwing the body from the train, was acting for himself, and 
was not performing a duty owing the railway company; but the act was done evidently to cover up and 
conceal his wrongful act, for which the company should not be held liable.
        Appellee presents cross-assignments of error to the effect that the court erred in failing to submit to 
the jury the issue of right of recovery for the killing. The evidence shows that Thomas Bowen was a 
trespasser upon a freight train of defendant. When the train was going up a long grade, Galloway was 
seen talking to Bowen, when he drew a pistol and shot, and Bowen fell in the car in which he was riding. 
The next day Bowen's body was found below Mexia, frightfully mangled and mutilated, evidently by the 
train running over it, and there was a bullet hole in his forehead. There was evidence that brakemen 
customarily ejected passengers, though that duty was delegated to conductors by the rules of the 
company. Whether or not, under the evidence, the brakeman was attempting to eject young Bowen, and 
had authority to perform that duty, are questions that should have been submitted to the jury for their 
determination. When a servant has authority to do a certain thing, and in attempting to do it he does a 
wrong, the master is liable for the wrong. If the servant is not acting within the scope of his authority, and 
not in the master's interest, the master is not liable for the acts of the servant.
        The judgment of the lower court is reversed, and the cause remanded for another trial.
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Notes:
* Rehearing denied June 4, 1904.
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