Biggins v. Gulf, C. & S. F. Ry. Co.
| Decision Date | 21 April 1909 |
| Court | Texas Supreme Court |
| Parties | BIGGINS v. GULF, C. & S. F. RY. CO. |
Action by O'Finley Biggins, by next friend, against the Gulf, Colorado & Santa Fé Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals (110 S. W. 561), and plaintiff brings error. Affirmed.
Plummer & Haynes, for plaintiff in error. H. P. Brown, P. Lomax, Terry, Cavin, & Mills and Chas. K. Lee, for defendant in error.
The plaintiff in error sued for damages for an assault and battery alleged to have been committed upon him by a watchman in the employment of the defendant in error by shooting him with a pistol. There was evidence at the trial tending to show each of the following states of fact: (1) That the watchman fired the shot with the intent to hit plaintiff; (2) that he discharged the pistol purposely, not with the intent to hit plaintiff, whom he was pursuing, but with the intent to frighten and cause him to stop; (3) that the pistol was accidentally discharged as the watchman was climbing up a bank in pursuit of the plaintiff.
The charge of the trial court authorized a recovery by plaintiff if the jury, in addition to other facts, which need not be stated, should find either of the two facts first stated to have existed. It further instructed, in substance, that if the discharge of the pistol was unintentional and purely accidental the plaintiff could not recover. The plaintiff, by a requested charge, sought to have the jury instructed, in substance, that if the watchman shot plaintiff either intentionally or in a negligent manner in the discharge of his duties they should find for plaintiff. This requested instruction stated a correct proposition of law; but, as was held by the Court of Civil Appeals, the ground of recovery for negligence was not within the scope of plaintiff's petition. It alleged nothing but an assault and battery to characterize the shooting as unlawful and wrongful. An intent to injure is the gist of an assault and battery, and the suit was, therefore, for an intentional and willful act not otherwise alleged to have been wrongful. If the only fact alleged to make it unlawful did not exist, there was no basis in the pleading for finding it to have been wrongful because of other facts not stated. There are defenses which could be made to a charge of a negligent inflicting of such an injury, such as...
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