Payne v. Tisdale

• Decision Date: 26 May 1921
• Docket Number: (No. 2430.)
• Parties: PAYNE, Agent, et al. v. TISDALE.
• Court: Texas Court of Appeals

232 S.W. 881

PAYNE, Agent, et al. v. TISDALE.

(No. 2430.)

Court of Civil Appeals of Texas. Texarkana.

May 26, 1921.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by A. C. Tisdale against John Barton Payne, Agent, and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Head, Dillard, Smith, Maxey & Head, of Sherman, and A. S. Dodd, of Clarksville, for appellants.

Keeney & Dalby, of Texarkana, for appellee.

HODGES, J.

This appeal is from a judgment for damages in favor of the appellee, Tisdale, against John Barton Payne, government agent in charge of litigation against railroads, and J. A. Robinson, who was a local agent of the Texas & Pacific Railway Company. In his amended original petition the appellee alleged that in November, 1920, he went to the railway depot at Detroit, in Red River county, for the purpose of sending a telegraphic message; that Robinson was the agent of the telegraph company and of the railroad company at that place. After delivering the message to Robinson the latter, acting for himself and as the agent of the telegraph company and also of the Director General, demanded of plaintiff to know if he was going to withdraw a suit which the plaintiff had theretofore filed against the Director General; and without any just cause or excuse Robinson wrongfully and maliciously rushed upon him with his fist drawn, cursed and abused the plaintiff in the presence of others. It was further alleged that Robinson followed plaintiff from the premises, cursing, abusing, and threatening to inflict serious bodily injuries upon him, in the presence of a number of other people. He averred that as a result plaintiff was frightened, greatly humiliated, insulted, and distressed, and has suffered great mental pain and anguish. No battery was alleged, or physical injury claimed. The plaintiff testified, in substance, that he visited the depot at the time mentioned for the purpose of sending a telegraphic message; that while on the premises Robinson, the agent of the telegraph company and of the railway company, demanded to know when he, the plaintiff, was going to dismiss a certain lawsuit which the plaintiff as an attorney had filed for another party in an effort to recover damages for the loss of a trunk; that he told Robinson he had no authority to dismiss the suit, and did not intend to do anything. In reply Robinson said, "Yes you are," and came around in front of him, drew his fist back and said, "I have a good notion to knock hell out of you, you God dern little devil." Plaintiff put up his hand and replied, "You can't afford to hit me." Robinson then said, "If you don't quit meddling with me and my business I will slap hell out of you." Plaintiff says he was humiliated and hardly knew what to do; that he was not able to fight, and besides he was not disposed to fight—was not of the fighting kind. After sending the telegram substantially the same insults were repeated by Robinson. This occurred in the presence of a number of other people. Testimony was offered by the defendants tending to show that no such violent language was used; that while Robinson and the plaintiff did have a controversy regarding a suit which had been filed, no insulting words were used by Robinson, and no effort was made by him to strike the plaintiff, nor any threatening gestures indicating such an intention.

The case was submitted on special issues. The first question was:

"Do you find by a preponderance of the evidence that the defendant, J. A. Robinson, assaulted or abused the plaintiff, A. C. Tisdale, as set out in paragraph 3 of the plaintiff's petition?"

This question was followed by the statutory definition of an assault. To this the jury answered, "Yes." In another paragraph the court submitted the issue of damages, and instructed the jury that in assessing damages they might take into consideration any mental suffering or humiliation which was caused to the plaintiff by any "assault or abuse, if there was any." Under other provisions of the charge the jury was authorized to determine whether or not Robinson was acting within the scope of his authority either as a telegraph agent or the railway agent. The finding was such that the...