Medlin Milling Co. v. Boutwell

• Decision Date: 30 October 1909
• Citation: 122 S.W. 442
• Parties: MEDLIN MILLING CO. v. BOUTWELL.
• Court: Texas Court of Appeals

122 S.W. 442

MEDLIN MILLING CO. v. BOUTWELL.

Court of Civil Appeals of Texas.

October 30, 1909.

Rehearing Denied November 20, 1909.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by E. Boutwell against the Medlin Milling Company. Judgment for plaintiff. Defendant appeals. Affirmed.

See, also, 108 S. W. 1025.

J. T. Jones, for appellant. J. P. Copeland, J. P. Yates, and H. L. Carpenter, for appellee.

RAINEY, C. J.

This is an appeal from a judgment recovered by appellee against appellant in a suit brought for damages for the illegal whipping and injury to appellee, committed by appellant's servants under its authority and permission. A general demurrer to plaintiff's petition was overruled, exception duly reserved, and this is assigned as error.

This is the second appeal of this case. On a former trial the lower court sustained the demurrer to the action, and dismissed the case. On appeal the judgment was reversed and the cause remanded for a trial on the merits; this court holding that the petition showed grounds for a recovery. The overruling of the demurrer is assigned as error, and presented for our consideration. We are still of the opinion that our former holding is correct, and this assignment is overruled. See Boutwell v. Medlin Milling Co., 108 S. W. 1025. The evidence shows that appellee was employed as a laborer in appellant's milling plant, and, while he was engaged in the performance of his duties as such laborer, he was set upon by a number of others of appellant's employés for the purpose of "initiating" him, as they termed it. The "initiation" was performed by the administration of a paddle to the person by such employés. Appellee, being unwilling to receive the "initiation," resisted, and in the attempt of the other employés to enforce it over his resistance he was severely injured, to the extent of the amount of damages assessed by the jury. This manner of "initiation" of new employés had existed among the mill employés for quite a period and none escaped, except those who by superior force were able to successfully resist; the custom being to always send a force sufficient to overpower those who made resistance. This custom of "initiation" was known to all parties connected with the mill; some 15 or 16 persons having received it as they entered the service of the mill, and it is evident this custom was known and acquiesced in by the management of the mill, as it was shown that the president and manager...