Jackson v. Wells

• Decision Date: 18 April 1896
• Citation: 35 S.W. 528
• Parties: JACKSON v. WELLS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 528

JACKSON v. WELLS.¹

Court of Civil Appeals of Texas.

April 18, 1896.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by W. B. Wells against John L. Jackson to recover damages for an assault and battery. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. A. McCall, for appellant. Harry W. Kuteman, for appellee. Statement of the Case, with Conclusions of Fact.

TARLTON, C. J.

This appeal is from a verdict and judgment in the sum of $1,916.666 as actual damages, and the sum of $541.666 as exemplary damages, recovered by the appellee against the appellant, on account of an assault and battery committed by the latter upon the former.

From the evidence we find the following conclusions of fact: (1) On September 13, 1894, the defendant, Jackson, dealt the plaintiff, Wells, a violent blow upon the head, with a heavy pistol, thereby inflicting serious and painful injuries. (2) The assault and battery was committed with malice. (3) The consequent injuries were such as to justify the assessment of actual damages awarded by the jury. The injuries were inflicted in such a manner and under such circumstances as to justify the assessment of exemplary damages awarded by the jury.

Conclusions of Law.

We find the following conclusions of law upon the assignments of error presented in the appellant's brief:

1. It seems to be settled, in this state, whatever may be the rule elsewhere, that one who commits an unprovoked and malicious assault and battery upon the person of another may be made responsible to the latter for exemplary, as well as actual, damages. Flanagan v. Womack, 54 Tex. 46; Shook v. Peters, 59 Tex. 393.

2. The fact that the defendant had been adjudged guilty of an aggravated assault, and had paid his fine and the incidental costs, can be pleaded in mitigation of exemplary damages, but not in bar thereof. See the authorities above cited.

3. The action of the court in overruling the second and third special exceptions to the petition, for the alleged reason that it fails to state the grounds for actual and exemplary damages separately, furnishes no cause of serious complaint. The petition states the plaintiff's cause of action with sufficient fullness and clearness to apprise the defendant quite distinctly of what he would be called upon to answer, both with reference to the claim for actual and for exemplary damages. The amounts for the two kinds of damage were stated separately in the petition, and submitted separately in the charge.

4. With reference to the value of the time lost by him while disabled on account of the injuries received, the plaintiff testified: "It would be very hard for me to say what my time was worth. At that season of the year it was worth more than any other to me. My salary at that time was $75 per month. I think my time at that season of the year was reasonably worth $10 per day. I was then working for Porter & Sawtelle, but I was also collecting the old accounts of Wells, Everett & Sawtelle. I was a member of the old firm of Wells, Everett & Sawtelle, and this firm sold out to Porter & Sawtelle. At the time the old accounts of Wells, Everett & Sawtelle belonged to Mr. Sawtelle and myself, and I was trying to collect these old accounts. That was the best season in this country for collection." We think the court properly permitted the witness to state his estimate of the value of his time, together with the attendant facts and circumstances detailed by him. This statement was not a mere opinion, but an estimate, accompanied by a statement of the facts and reasons on which it was based. Railway Co. v. Donovan, 86 Tex. 378, 25 S. W. 10; Railway v. Dunman, 85 Tex. 181, 19 S. W. 1073; Railway Co. v. Klaus, 64 Tex. 294; Railway Co. v. Ruby, 80 Tex. 175, 15 S. W. 1040; Railway Co. v. Locker, 78 Tex. 279, 14 S. W. 611.

5. The court correctly admitted evidence showing that, about a year and a half before the difficulty, Wells had three hemorrhages from the lungs, that he had lung trouble, and that he was weak and feeble from this lung trouble at the time of the assault. This testimony was accompanied by evidence from which the fact could be inferred by the jury that the defendant knew of the hemorrhages, and the consequent weak health of the appellee. Thus, the latter testified: "At the time this lick was struck me, I was very weak, and my general health...