Thompson v. Hodges

• Decision Date: 31 January 1951
• Docket Number: No. 12204,12204
• Citation: 237 S.W.2d 757
• Parties: THOMPSON v. HODGES.
• Court: Texas Court of Appeals

Page 757

237 S.W.2d 757

THOMPSON v. HODGES.

No. 12204.

Court of Civil Appeals of Texas, San Antonio.

Jan. 31, 1951.

Rehearing Denied March 7, 1951.

Sharpe, Cunningham & Garza, Brownsville, for appellant.

Bowie & Scanlan, Wm. Scanlan, all of Brownsville, Shirley M. Helm, W. J. Kronzer, Jr., and Albert P. Jones, all of Houston, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by R. A. Hodges against Guy A. Thompson, Trustee for St. Louis, Brownsville and Mexico Railway Company, in the District Court of Cameron County, seeking to recover damages for personal injuries alleged to have been received by him when an assault and battery was committed upon him by one J. A. Pitcock on January 30, 1949, while Pitcock was serving as yard master for the defendant at Brownsville, Texas.

The trial was to a jury and judgment was entered in favor of R. A. Hodges against Guy A. Thompson, in his capacity as Trustee for The St. Louis, Brownsville and Mexico Railway Company, in the total sum of $8,750, based upon the jury's answers to the special issues submitted to them. Guy A. Thompson as such Trustee has prosecuted this appeal.

The jury found in answer to Special Issue No. 1, that J. A. Pitcock, in using physical force upon plaintiff, R. A. Hodges, on the occasion in question, was acting within the scope of his employment with the Railway Company.

Appellant presents the contention that there is no evidence to support this finding, and in any event the evidence is insufficient to support the finding. We overrule this contention. R. A. Hodges was a member of a switch engine crew that was on duty in the railroad yards of appellant on January 30, 1949, at the same time that J. A. Pitcock was on duty as yard master for appellant. Shortly after 7:00 p. m. engine foreman Webb suggested that the crew could eat, and engineer Cleveland agreed, Hodges being temporarily absent at the time. Apparently all the crew members had brought their lunches with them and were preparing to eat when Pitcock saw Hodges walking past the yard of office, and, approaching him, asked if he had eaten. On learning that Hodges had not eaten, Pitcock informed him that he had only twenty minutes in which to eat and that he could not use the switch engine to ride to town as a 'jitney.' It seems that the crew had been in the habit of using the switch engine to go about five-eights of a mile down the track to a cafe when they desired to eat. Hodges retorted that he could not eat in twenty minutes and suggested that inasmuch as Mr. Judd, Division Superintendent, and Mr. Barksdale, the Train Master, were in town that Pitcock should submit the controversy to them. Whereupon, Pitcock left and returned in about ten minutes stating that he had been unable to contact either Judd or Barksdale. Hodges suggested that Pitcock try to reach them as the hotel by telephone as he had an 'eating contract.' The eating contract is defined by Hodges as part of his union contract stating when and how long he had to eat while on duty. Hodges then began to make gestures and point his finger in Pitcock's face. Pitcock was heard to say 'take your finger out of my face.' Hodges was heard to reply that if Pitcock were not an old man he would slap him. Then the fight began with Pitcock striking the first blow. Hodges was knocked down twice and then kicked off the platform. Hodges contends that as a result of this beating he received serious and permanent injuries.

J. A. Pitcock was the yard master and was in charge of the property of the railroad in the yard, including the switch engine. It was his duty to see that the switch engine was not used for unauthorized purposes. The question here presented is whether or not the assault and battery which Pitcock committed on Hodges grew out of the performance of his duties as yard master. Pitcock had informed Hodges that he could not use the switch engine as a 'jitney' and that he had only twenty minutes in which to eat. Hodges had challenged this statement by saying that he could not eat in twenty minutes and demanded that Pitcock take the matter up with his superiors. While this discussion was still going on the fight started and assault and battery was committed upon Hodges. The jury found that the assault and battery was committed by Pitcock while acting in the scope of his employment. The evidence clearly raised the issue and it was properly submitted to the jury. The evidence was sufficient to support the finding of the jury. Gulf, C. & S. F. Railroad Co. v. Cobb, Tex.Civ.App., 45 S.W.2d 323; Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880; Central Motor Co. v. Gallo, Tex.Civ.App., 94 S.W.2d 821; Texas & Pacific Railway Co. v. Crown, Tex.Civ.App., 220 S.W.2d 294.

Appellant next contends that the trial court committed reversible error in not submitting an issue of proximate cause with reference to the injuries allegedly sustained by Hodges. We overrule this contention. The evidence conclusively shows that Hodges was injured as a direct result of the assault and battery committed upon him by Pitcock. In such cases it is not proper nor necessary to submit the question of proximate cause. The assault and battery was willfully and intentionally committed by Pitcock upon Hodges...