Anderson v. Alcus, 2112.

• Decision Date: 01 October 1931
• Docket Number: No. 2112.,2112.
• Citation: 42 S.W.2d 294
• Parties: ANDERSON v. ALCUS.
• Court: Texas Court of Appeals

42 S.W.2d 294

ANDERSON v. ALCUS.

No. 2112.

Court of Civil Appeals of Texas. Beaumont.

October 1, 1931.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Burke Alcus against Christ Anderson. From a judgment for plaintiff, defendant appeals.

Affirmed in part, and reversed and rendered in part.

W. Owen Dailey and Lawrence H. Kenner, both of Houston, for appellant.

G. W. Staton, of Houston, for appellee.

O'QUINN, J.

Burke Alcus brought this suit against Christ Anderson to recover actual and exemplary damages in a large amount, $25,000, based upon certain language alleged to have been used by Anderson to Alcus at his (Alcus') place of business, in the hearing of others, in which it was alleged, among other things, that Anderson called Alcus a liar, a thief, and a highway robber.

The trial resulted in a judgment for appellee for $1 nominal damages and $500 exemplary damages. From that judgment, Anderson has appealed.

The case was tried to a jury upon special issues, which, together with the answers thereto, were as follows:

"Special Issue No. 1. Do you find that on or about the 6th day of September, 1928 the defendant, Christ Anderson, in the presence and hearing of the plaintiff, Burke Alcus, used in substance the following language: `Get Out, You're just a God Damned lying son-of-a-bitch, and if you don't get out of here, right now, damned if I don't kill you.' Answer yes or no, as you find the fact to be." Answer: "Yes."

"Special Issue No. 2. Do you find that on the occasion inquired about the defendant, in the presence and hearing of the plaintiff, used to and concerning the plaintiff, in substance the following language: `You're a dam dirty thieving son-of-a-bitch, and a highway robber, and you know it. Damned if I am not going to tell the whole world what a lying dirty thief and robber you are. Get out of this place or I'll be damned if I don't get my gun and kill you sure as Hell.' Answer yes or no, as you find the fact to be." Answer: "Yes."

"Special Issue No. 3. Do you find that on or about the 6th day of September, 1928, the defendant, in the presence of Ed Baylotte and Ollie Smith, or in the presence of either of them, used to and concerning the plaintiff in substance the following language: `Alcus is a lying thief and robber. He stole my partition and didn't ask me anything about it. He is just a God Dam thief, that's all, and I'll be damned if I don't tell the whole world, even if I have to kill him to get him out of these premises. Damned if I don't go down and have him and the whole damn bunch put in jail.' Answer Yes or No, as you find the fact to be." Answer: "Yes."

"Any unlawful violence done the person of another with intent to injure him, whatever be the degree or means of violence used, is an assault and battery; and any attempt to commit a battery or any threatening gesture showing within itself, or by words accompanying it, an immediate intention, coupled with ability to commit a battery, is an assault.

"When an injury is caused by violence to the person, intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint and sense of shame or other disagreeable emotion of the mind.

"By the term `Coupled with the ability to commit,' is meant:

"(1) That the person making the assault must be in such position that if not prevented he may inflict a battery upon the person assailed; and

"(2) That he must be in such distance of the person so assailed as to make it within his power to commit a battery by the use of the means with which he attempted it."

"Special Issue No. 4. Do you find that on September 6, 1928, the defendant committed an assault upon the plaintiff? Answer yes or no, as you find the facts to be." Answer: "Yes."

"If you have answered any of these special issues in the affirmative the law presumes an injury and you must find for the plaintiff at least nominal damages.

"Malice is a state of mind to be found from the facts in the case and which characterize an unlawful act intentionally done without reasonable grounds for believing the act to be lawful.

"It is not necessary, in order to find malice, that hatred, dislike, spite or resentment exist, but it may be inferred from the doing of an unlawful act without reasonable ground for believing the same to be lawful.

"If you have answered any one of the special issues hereinbefore submitted in the affirmative and in that event only, then answer:

"Special Issue No. 5. What sum of money, if paid to the plaintiff in cash at this time, would fairly and adequately compensate him for the injuries, if any, directly and proximately caused by the wrongful conduct of the defendant, as inquired about in the preceding special issues, if any, taking into consideration as elements thereof, and only these, the following: Embarrassment and humiliation; mental pain; fright; fear for his life and safety at the hands of Christ Anderson, if any. Answer, stating the amount, if any, in dollars and cents." Answer: "None."

"If you have found the affirmative in answer to either of the special issues One, Two, Three and Four, you may inquire into the propriety...