S. H. Kress & Co. v. Brashier, 8844.

• Decision Date: 25 May 1932
• Docket Number: No. 8844.,8844.
• Citation: 50 S.W.2d 922
• Parties: S. H. KRESS & CO. v. BRASHIER et al.
• Court: Texas Court of Appeals

50 S.W.2d 922

S. H. KRESS & CO. v. BRASHIER et al.

No. 8844.

Court of Civil Appeals of Texas. San Antonio.

May 25, 1932.

Appeal from District Court, Val Verde County; Joseph Jones, Judge.

Action by Mrs. J. W. Brashier and husband against S. H. Kress & Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Boggess, LaCrosse & Lowrey, of Del Rio, for appellant.

Jones & Lyles, of Del Rio, for appellees.

SMITH, J.

Appellee Mrs. J. W. Brashier (joined by her husband) brought suit and recovered judgment for damages in the sum of $500 against appellant, S. H. Kress & Co.

An outline of the facts is as follows:

Appellant operates a store in Del Rio. Appellee, accompanied by her married daughter and a little girl, four years old, went into the store to do some shopping. Appellee saw a pattern book on one of the counters on which goods were displayed for sale. The book was price-marked 15 cents. In response to appellee's inquiry, the attending saleswoman told her the book was for sale at said price, appellee purchased and paid for it, the saleswoman rolled it up and delivered it to appellee, who passed on to the thread counter, in another part of the store, and began to negotiate with the saleswoman there for some thread. She was carrying the pattern book under her arm. At this juncture the general manager of the store approached appellee, and in a loud and insulting manner accused her, in effect, of having stolen the pattern book, which he thereupon violently jerked from her possession, and retained. Besides those in her immediate party, other store employees and customers heard and witnessed the obviously and inexcusably outrageous transaction. Appellee testified to the resulting injurious effect upon her sensibilities, and upon her mental and physical condition, which was such as to warrant the $500 verdict.

In response to special issues the jury found: (1) that appellant's "agent and employee dispossessed plaintiff, Mrs. J. W. Brashier, of the magazine or catalogue referred to in the evidence in the manner and under the circumstances alleged in plaintiff's petition"; (2) that appellee did "suffer from humiliation and indignity by reason of being dispossessed of the article she had purchased, by defendant's agent, in the manner and under the circumstances disclosed by the evidence"; (3) that $500 would compensate appellee "for the humiliation and indignity she suffered."

Appellant has presented the appeal upon the theory that the suit is an action purely for slander, and invokes the technical rules applicable to such cases for the purpose of testing appellee's right to recover under her pleadings and proof. The case is not one of slander, but is an action for damages for an assault or trespass upon the person. Questions of privileged communication, or of malice, or good faith, have nothing to do with the case, which does not involve exemplary damages, but actual damages only. The trial court correctly overruled appellant's general demurrer and its request for a directed verdict, which rulings are complained of in appellant's first and fourteenth assignments of error, now overruled.

Appellant has grouped its assignments 11, 12, and 13 and submitted them without propositions to support them, and under every rule of briefing they could and should be disregarded on appeal. We have nevertheless considered them, and regard them without merit.

It appears that the trial court refused, in response to appellee's objection, to permit appellant's general manager, while...