Helms v. Harris, 1
| Decision Date | 24 June 1955 |
| Docket Number | No. 1,A,No. 15634,1,15634 |
| Citation | 281 S.W.2d 770 |
| Parties | Jennie V. HELMS, et vir, Appellants, v. S. D. HARRIS d/b/a Harris Bros. Super Marketppellee. |
| Court | Texas Court of Appeals |
A. Foy Curry, Jr., and Ernest May, Fort Worth, for appellants.
Cantey, Hanger, Johnson, Scarborough & Gooch and David O. Belew, Jr., Fort Worth, for appellee.
Plaintiff Jennie V. Helms, a patron of a market operated by defendant S. D. Harris, was standing by the checking stand conversing with defendant when a masked bandit approached and pointed a revolver at the defendant. The defendant spoke words indicating that he was submitting to the holdup, and then, upon the bandit's momentarily glancing toward the rear of the store to see if his activity was being observed, grabbed the bandit's revolver and started wrestling with him for possession of it. The bandit prevailed, whereupon the defendant dived behind the checking stand. The bandit fired a short at the checking stand, behind which the defendant was concealed, then turned and ran toward the front door of the market. When the bandit started running toward the front door the plaintiff started running in the opposite direction and toward the rear of the establishment. Upon reaching the front door the bandit turned and observed the plaintiff as she ran. He fired a shot toward her retreating figure, striking her in the hip.
In a jury trial, special issue findings were returned to the effect that the defendant's attempt to resist the robbery was negligence and a proximate cause of the injuries sustained by the plaintiff.
The trial court rendered a judgment non obstante veredicto in behalf of the defendant. The plaintiff appealed.
Judgment affirmed.
It is the plaintiff's contention that the same causal relationship existed between her injuries and defendant's resistance to the bandit as would have been the case had she been shot in the course of the struggle between them. We can readily agree that had plaintiff been accidentally shot through a discharge of the revolver during the course of defendant's struggle with the bandit there would have been a causal relation. But, under the circumstances of this case, we do not believe that it could be said that the plaintiff's injuries proximately resulted from the defendant's resistance.
In the first place, the plaintiff sustained no injury as result of the defendant's resistance of the robbery. Her injury followed the defendant's abandonment of resistance. That is certainly true unless it could be said that a flight of an intended victim in an attempt to escape being robbed is resistance. That is what occurred in the present instance, though the evasive action on the part of the defendant followed his affirmative resistance by way of combat. Of course, it may reasonably be inferred that the bandit's ire was aroused by the resistance initially offered so that the original discharge of the revolver by the bandit at the defendant's place of hiding was vindictive in nature. However, it seems clear that when the bandit discharged the revolver into the checking stand he abandoned his attempt at robbery at the same time. In any event, he then fled toward the front door in an obvious attempt to escape the scene of his criminal act.
In the second place, under the agreed statement of facts, the injury that the plaintiff did sustain was inflicted upon her intentionally by the bandit for causes unrelated to defendant's resistance to him. He observed her fleeing toward the rear of the store, aimed his revolver at her and shot her. It is not reasonable to infer that his action toward her was vindictive. It is only reasonable to infer that his action in shooting her was inspired by the fear that her flight, if not restrained, might result in his arrest for attempted robbery. If that is true, then there would be no proper distinction in the circumstances as they actually occurred from the hypothetical case which could have resulted had the plaintiff not been shot at the time, but where a week later in a different store she and the bandit recognized one another, whereupon she started to flee from him, and he in turn had shot her to prevent her flight. In neither the instance hypothecated nor under the circumstances of the actual shooting would plaintiff's injuries from being shot bear any causal relation to the resistance to the bandit on the part of the defendant. Her injuries bear a causal relationship to the bandit's robbery attempt, but not to the defendant's resistance thereto.
If we consider the defendant's action in grabbing the...
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