Brookshire v. Wright , 1935 Tex. App. LEXIS 593 ( 1935 )

Ananias Wright and wife, Rena Wright, sued W. A. Brookshire and the members of Brookshire Bros., a copartnership, to recover actual and exemplary damages for an assault and battery alleged to have been committed upon Rena Wright by said W. A. Brookshire.

The jury found: (1) That W. A. Brookshire committed an assault and battery on the person of Rena Wright; (2) actual damages in the sum of $200; (3) that the assault and battery was not malicious.

Appropriate definitions of "assault and battery" and "malicious" were given in connection with the charge. The issues relating to the liability of the members of the copartnership were found in their favor. Judgment was rendered against W. A. Brookshire from which he appeals.

Error is assigned: (1) To the action of the court in overruling an exception to the petition complaining of a want of particularity in the allegations concerning the injuries sustained by Rena Wright; (2) upon the ground that the finding that the assault and battery was not malicious is in conflict with the first finding.

The generality of the isolated phrase in the petition against which the exception was leveled is cured by subsequent allegations sufficiently particularizing the injuries complained of.

Furthermore, under the rule announced in Golden v. Odiorne, 112 Tex. 544,249 S.W. 822, error, if any, in overruling the exception was harmless.

There is no irreconcilable conflict between findings 1 and 3. The jury might find that Brookshire was guilty of unlawful violence upon the person of Rena Wright as it found in response to question 1 and at the same time believe and find that such unlawful violence was not accompanied by all of the facts necessary to be shown in order to make the act malicious.

Affirmed.