A. B. C. Stores v. Brown

• Decision Date: 13 May 1937
• Docket Number: No. 3091.,3091.
• Parties: A. B. C. STORES, Inc., v. BROWN.
• Court: Texas Court of Appeals

105 S.W.2d 725

A. B. C. STORES, Inc., v. BROWN.

No. 3091.

Court of Civil Appeals of Texas. Beaumont.

May 13, 1937.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by Noah Brown against the A. B. C. Stores, Incorporated. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Boyles & Atkinson, of Houston, for appellant.

C. W. Wiedemann, of Beaumont, for appellee.

COMBS, Justice.

Noah Brown, a customer, was assaulted by Robert Davis, an employee of the A. B. C. Stores, Inc. He filed this suit against the company seeking damages in the sum of $5,000 for alleged injuries resulting from the assault.

Plaintiff's petition charges that his injuries were maliciously and willfully inflicted upon him by the employee Davis, without just excuse or provocation; that said assault was made with the implied authority of the defendant in that defendant's manager, David Cammack, under whom Davis worked, was present and did not interfere or attempt to prevent the assault.

Briefly stated, the evidence, so far as material, was: The defendant company operates a grocery store on Calder avenue in Beaumont. The store is a serve yourself type, in which the customer selects his purchases and presents them to a cashier, who determines the amount and collects the purchase price. Robert Davis was employed by the defendant as a cashier. On the occasion in question the plaintiff Brown, a negro, went to the store and selected several articles and carried them to Davis to be checked. An argument ensued between Davis and Brown as to the amount of the purchase. Brown testified that Davis called him a vile name, whereupon he (Brown) said: "Well you keep the groceries and I will keep my money." Davis denied that he cursed or abused Brown, but it is not disputed that Brown left the store without the groceries and Davis followed him to his car, which was parked outside. The argument was continued and Brown got in his car and started to drive away. Davis testified that Brown stuck his head out of the car window and called him a vile name, whereupon he (Davis) got on the running board of Brown's car, which had begun to move, and attempted to strike him with his fist. He struck a window of the car, breaking the glass and cutting his hand. As the car was gaining speed, Davis jumped off the car and returned to the store. Brown testified that he drove about half a block and decided to go back to the store and complain to the manager, Mr. Cammack, about Davis' treatment of him. Cammack was in the back of the store checking in a delivery of milk from the deliveryman. Brown testified that when he got inside he saw Mr. Cammack and Davis in a small room which was partitioned off with a lattice talking, and that as he got within a few steps of them Davis rushed out of the door of the room and met him, and struck him in the face with brass knucks, or some blunt instrument, knocking him down; that Davis then grabbed a small two-wheeled truck and struck him with it, inflicting injuries to his side and foot. Mr. Cammack in the meantime rushed out and separated them, and then directed the negro porter to get some vaseline and a towel and administer first aid to Brown, which was done.

Both Davis and Cammack denied that they were talking when Brown came up, or that Cammack knew prior to the assault about the argument between Davis and Brown. Davis had been employed by the defendant company four years and had never before had any argument or trouble with a customer.

The trial was to the court and resulted in a judgment in favor of Brown for $350, from which judgment the defendant has appealed.

Opinion

It is our conclusion that no liability was...