Aрpellee, Tom Kane, filed suit against appellants, Charlie Francis and his son Hershel Francis, for actual and exemplary damages because of alleged personal injuries he sustained as a result of a personal assault made upon him by appellants acting together in the premises. The case was tried to a jury on February 20, 1951, and upon its verdict judgment was rendered for appellee against appellants jointly and severally for the sum of $2,500 as actual damages only from which judgment appellants have perfected their appeal.
Appellants attack the trial court’s judgment for two reasons сharging error because of the trial court’s refusal to submit their special requested issue number one to the jury and because of jury misconduct.
The evidence reveals that appellee was a married man 42 years of age; that he ■had been engaged in flying airplanes for ■fifteen years, during a part of which time he had served in the Army Air Corps for thirty-four months; that at the time of his alleged injuries he was employed under written contract by the City of Wellington to operate and manage its air base known as Marian Airpark where a part of his duties were to conduct a flying school and to supply fuel to the public for aircraft use. On Mаrch 20, 1950, appellants tried to buy gasoline from appellee and they were advised by appellee that he was out of gasoline. Early the following morning appellants inquired of the Wellington City Manager and his gasoline truck driver to know if more gasoline had been delivered to Marian Airpark and, upon finding it had not, thеy asked the City Manager to see about it. Later that morning appellants went to appellee’s place of business where they found appellee sitting on the driver’s side in his automobile in front of his office. Appellants got out of their automobile and both approached appellee sitting in his automobile when appellant Hershel Francis opened the door of appellee’s automobile, caught him by the left arm and said to appellee, “Let’s go measure that gasoline.” In reply ap-pellee said, “You go to hell”. Whereupon appellant Hershel Francis attacked apрel-lee while he was still sitting in his automobile by beating and choking him. After knocking appellee over in the front seat of his automobile Hershel Francis got in the automobile on top of appellee and beat him some more. In the meantime appellant Charlie Francis went around to the opposite side of appellee’s automobile and tried to open the front door but found it locked. Charlie Francis then told his son, Hershel Francis, to pull appellee out of the automobile. Hershel Francis testified that he was not doing much good fighting inside the automobile, and when he heard his father tell him to pull appellеe out of the car, he then pulled him out of the automobile and there finished the fight. Both appellee and a nine year old girl, who stood by and saw the fight, testified, in effect, that both appellants actively participated in the assault made upon appellee but appellants deny that appellant Charlie Francis did any more than try to open the right-hand automobile door and that he did tell his son Hershel during the fight inside the automobile to pull appellee out of the automobile, which Hershel did in compliance with his father’s suggestion, after which he continued to beat appellee. The evidence further shows that Hershel Francis was a much larger man than ap-pellee was.
Doctor C. B. Jones, a regular practicing physician at Wellington, testified that he examined and treated appellee soon after the alleged assault and on the same day thereof and that he treated him daily for several days аnd thereafter intermittently for several months. He further testified that appellee had a swelling and discoloration of his face and right eye and a fracture from his nose into his right antrum when he first saw him; that his lower *281 lip was cut and lacerated with a hole clear through the same; that within forty-eight hours there was discoloration of his throat and chest and an X-ray showed a fracture from his right nostril into the sinus or his cheek bone; that appellee had a paralysis of the muscles over one ear and his lip, which prevented a normal use of the muscles on that side of his face. Doctor Jones further testified that he examined appellеe several months later and again on the day of the trial and still found evidence of paralysis on one side of appellee’s face and further found the need of an operation to correct his facial condition and to prevent a defective hearing.
Based upon these facts briefly stated, the jury found that, at the time of the alleged assault, appellee was not making or about, to make an .unlawful attack upon appellants or either of them and that it did not reasonably appear to appellants or either of them that appellee was making or about to make such аn attack upon them or either of them. Based upon the evidence heard, the jury found that $2,500 would fairly compensate appellee for actual damages sustained by him by reason of his injuries received.
Appellants charge that the trial court erred in its refusal to submit to the jury their special requested issue inquiring if аppellants were acting jointly in making the alleged assault upon appellee. There is evidence to the effect that appellant Charlie Francis helped to hold ap-pellee while his son, Hershel, gave ap-pellee the beating the evidence shows he received. That is denied by аppellants but Charlie Francis testified that he tried to open the opposite door of appellee’s automobile during the fight inside of the automobile but found the door locked and then he “encouraged” his son Hershel by “telling him what to do”. He testified further that he told Hershel to pull appellee out of the automobile, which Hershel did and the fight continued. Appellant Hershel Francis testified that he was not doing so well trying to fight inside of the automobile, but he heard his father tell him to pull ap-pellee out of the automobile, which he did and the fight was there finished but appellee never did strike him.
4 Tex.Jur. 979, paragarph 113, says in part: “Wherе one person assists another in making an assault both are principals and liable in damages for the injury inflicted. Overt participation or some form of encouragement in the commission of the assault is required.” In the case of Walker v. Kellar, Tex.Civ.App.,
Appellants cite and rely on the case of Wichita County Water Improvement Dist. No. 1 v. McGrath, Tex.Civ.App.,
• In the case at bar it was admitted by appellants that they went together and for the same purpose to appellee’s' рlace of *282 business, got out of their automobile and went together to see appellee who was then sitting in his own automobile where the younger appellant, Hershel Francis, immediately attacked appellee while he was sitting in his own automobile and at the suggestion of his father, Charlie Francis, he pulled аppellee out of his automobile on the ground where the fight continued. It appears from the testimony of appellants themselves that they “acted in concert in committing” the assault complained of and that Charlie Francis aided and assisted his son, Hershel Francis, in committing the same and that he, Charlie Franсis, by his conduct and statements “assented to” the assault committed. According to the admissions made by appellants as witnesses, they were acting jointly in an unlawful assault made upon appellee under the authorities heretofore cited and they were jointly and severally liable therefor as a matter of law without the submission of appellants’ special requested issue number one to the jury. '
Appellants further charge that the trial court erred in overruling their motion for a new trial alleging misconduct of the jury and in refusing to hear evidence in support of such grounds. In paragraphs 8, 9 and 10 of their amended motion for a new trial, appellants alleged misconduct of the jury, named three jurors who, they alleged, would give evidence to that effect, attached affidavits of the jurors concerning such a charge thereto and made the affidavits a part- of such allegations there made. Appellee specially excepted to appellants’ allegations in paragraphs 8, 9 and 10 of their amended motion for a new trial for the alleged reasons that appellants did not there sufficiently allege grounds for a new trial on. their charges' of jury misconduct and that the ex parte statements of- the alleged jurors could not be used оr heard to impeach the jury verdict. Upon a proper hearing the -trial court sustained appellee’s said . special. exceptions and thereafter overruled appellants’ motion for a new trial without permitting them to offer testimony on the issues of jury misconduct. At no time according to the record did appellants seek to amend or ask for permission to amend their pleadings as set out in their motion for a. new trial after the trial court had sustained appellee’s special exceptions to their said pleadings. Nowhere do appellants charge error or complain to this cоurt about the trial court’s action in sustaining-appellee’s special exception to their said pleadings. When the trial court sustained appellee’s exceptions to paragraphs 8,
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and 10 of appellants’ amended motion for a new trial, such pleadings, together with the affidavits of the allegеd jurors .which were made a part of the pleadings of the said paragraphs, were then eliminated and excluded from appellants’ other pleadings seeking a new trial in the case. The transcript reveals that appellants prepared a -bill of exception showing the action of the trial сourt in connection with these matters and the same was approved by the trial court.. But appellants failed to except thereto, bring the matter forward and present it to this court in any form as an assignment of error. In fact, we fail to find any mention made of the bill of exception in appellants’ brief. If the triаl court committed error in sustaining ap-pellee’s exceptions to a part of appellants’ pleadings in their amended motion for a new trial, such has been waived by appellants because of their failure to challenge such and brief the question before this court. Rayburn v. Giles, Tex.Civ.App.,
Rule 324, Vernon’s Texas Rules of Civil Procedure, makes the filing of a motion for a new trial, in a jury case, such as the case at bar, a prerequisite of appeal. Rule 320 sets forth the rules for preparing such a motion for a new trial. It requires that each ground relied on shall be specified and a ground not there specified shall not be considered on appeal. Rule 374 says the grounds set forth in such a motion shall constitute appellant’s assignments of error on appeal. Rule 418 sets forth the requirements for the contents of appellant’s brief. It is true that appellants set forth their alleged grounds of misconduct of the jury in their original amеnded mo *283 tion for a new trial but such grounds were excluded from their pleadings when the trial court sustained appellee’s exceptions thereto. Appellants do not complain here about such action of the trial court but they do complain because the trial court refused to hear and consider a matter that was not then supported by or even mentioned in the remainder of their pleadings. According to the record before us and for the reasons stated, it was not error for the trial court to overrule appellants’ motion for a new trial without hearing and considering the matter of alleged jury misconduct. After appellee’s special exceptions had been sustained, appellants’ plea of jury misconduct had been excluded, leaving no pleadings to support a charge of jury misconduct.
Appellants cite and rely on the case of Roy Jones Lumber Co. v. Murphy,
A careful examination of appellants’ assignments of error and the record does not reveal reversible error. Appellants’ points to the contrary are all overruled and the judgment of the trial court is affirmed.