*1 190 we appellants overruled. Since by -the are else recorded be should the liens dence of accurately are ascertain from unable of place where other than where assessed record the amount of taxes appellants these each of ficial records judg- Gardner, period, during due lots this Vaughn and Heisig v. kept. and the reversed ment of the trial court is 113, refused. writ Tex.Civ.App., 15 S.W.2d instructions cause is remanded with appellants contend Fourth, calculated, accord- judgment entered sum be charged suit cannot in a tax that costs -respective be foreclosed. liens ingly, corporation municipal rule against home district, taxing independent school judg Texas. its State of units of the costs, in charged all court trial ment the litem, attorney ad
cluding a .fee against as well against appellants, ‘the Texas, and the State County of Lubbock recover his appellee
and ordered UTILI- v. TEXAS GREATHOUSE PUBLIC is well tak appellants’ assertion costs. TIES CORPORATION. position we cite en, support of our 2678. No. Republic Ins. Co. v. these authorities. Independent School Dist. of Highland Park Appeals Texas. Eastland. Court of Civil County, Tex.Civ.App., 57 S.W.2d Dallas 3, 1948. Dec. dismissed; Grant et 627, writ refused 30, Rehearing Dec. 1093; On Ellis, Tex.Com.App., 50 S.W.2d al. v. Independent Dist. School Lake Sour Rehearing On Second Motion for al., Tex.Civ.App., 142 S.W.2d et Easterling 21, 1949. Jan. 7297,7333,7337, refused; 237, Articles writ Civil Statutes. 7343, Revised Vernon’s appellant,
Finally, In Lubbock District, contends that
dependent School 729S, Revised Civil Stat Vernon’s
Article period
utes, the State during tolled provides the lots.- This statute held title brought for the “(cid:127)that no suit shall be delinquent taxes of a School collection of * * *
District unless instituted shall time the same be years
ten delinquent.” what
come From we Independent apparent that the Lubbock
it is could not have maintained
School District delinquent during taxes suit the lots Texas held in its sov
the State of
ereign capacity, and therefore Article 7298 time. during
was tolled Hume v. al., Tex.Civ.App.,
Perry 136 S.W. et dismissed; 34 Jurispru American error al., 152; Miller v.
dence Watkins et S.W.2d
Ark.
113 A.L.R.913. appellants are opinion the entitled
In our property from 1919 until
to the taxes on title the lots was time the vested State, and therefore sustain points
appellants’ of error this connec- points of error raised
tion. All other *2 Lamesa, Clements, R. Stansell Smith, Huffaker, Jr.,
W. C. and Truett Tahoka, both appellant. for Rountree, Cayton, Carl Karl Mac Wassell, Lamesa, appellee. all of GRAY, Justice. Greathouse, surviving
Bertie Lorene Greathouse, deceased, wife of Oliver individually guardian herself and as children, next friend of their five minor and as next for Billie Great- friend Louise house, a a prior marriage minor born of Greathouse, of said Oliver Texas sued Corporation damages Public Utilities killing for the of said Oliver Greathouse Walton, one employee G. L. said response Special defendant. Issue jury No. that at found the time killing, said Walton was within employment. By the course an- subsequent special issues, swers damages plaintiffs found in a $20,000. exceeding Upon motion, sum trial court rendered de- fendant notwithstanding verdict. plaintiffs appealed.
Appellee engaged in the manufac- ture distribution ice in the town of Lamesa, County, Dawson Texas. Said employed by Walton appellee G. L. man, delivery light an ice operating assigned par- pick-up truck area ticular town. Oliver lived said area was one Greathouse of Walton’s The fatal alter- customers. Sunday on a cation occurred afternoon in August, accompanied 1946. Walton was occasion there his wife on this that he strong evidence was intoxicated. An ice at the front of the card was Great- stopped Walton house home. his truck in front house and called to of the Great- door, house, standing who was truck, which he come to his did. The evidence showed Walton first asked Greathouse if he was man with whom some (Walton) had had words on Sixth day. preceding a Greathouse Street replied the same that he was man. Great- approached and stood house cab truck Walton and of the while Mrs. Wal- remained seated in ton the cab. Mrs. testified that conversation Walton Helpful filed in her case. briefs been Mrs. Greathouse the ice. about appellee. appellants and appeal both the conver- very little heard children told Walton sation, except that Greathouse applicable law well stated get an- ice go justice while Judge Alexander *3 (Walton) was he day, that if other Waco, Appeals Civil the Court of at case trouble, probably he would looking for Gallo, of Central Motor Co. v. 94 the of Finally, got Walton out find it. quote: 822. We and truck, toward Greathouse advanced “ complained the ‘If act within of was fight A terrific his fist. with struck him authority, scope of the the servant’s the severely beat- Walton was in which ensued (cid:127) liable, although will be consti- master it fight, returned Walton en. After the authority tuted an abuse or excess of the Then Walton truck. Mrs. seat in the conferred. The serv- puts master who the ice, which fifty of pounds sold Greathouse place responsibility, in a trust ant of or pound hundred chipped a one he from or management commits him. the of Pay- it the house. into block carried and property, or care his business the of his The Walton. was made Mrs. ment servant, justly responsible when the held custom was that showed Walton’s evidence discretion, through lack of or or it in the re- place and the ice to deliver infirmity temper, from of under the or the returned Greathouse frigerator. passion influence of cir- aroused or yard, Greathouse front then told Mrs. occasion, beyond and the goes cumstances pan a bring of one of the children duty authority strict line of his and a cloth so he could wash water an unjustifiable injury inflicts on a clean him face blood Walton’s from person.’ page 1285, third 1476. § C.J. way. The up might go he on is, liability “The real test of the master’s whereupon brought, water and cloth employment whether servant’s con- to the cab went out of the got Walton templated the use force or of whether the proceeded rear of the truck Greathouse complained act was done of in accordance Great- from his face. to wash blood instructions, with but whether the master’s stooped from house down rinse blood complained the act o.f directly arose out straightened up, Walton cloth and as prosecution .was of and done in the of the with struck him on back of head employed the servant business tongs, knocking his ice Greathouse uncon- n todo.” of from effects scious and days question here case, died later. three argument In said arose between time, presented whether said Walton manager a the service of garage and a scope employ- of his acting within over customer work done in garage above, ment. stated found As on the customer’s automobile. The service within the he was of manager customer, struck the severely employment, but the trial court of injuring him. The master was held liable. law, as a matter of Walton It be noted that should assault took stepped engaged in a mission had aside 'place the shop directly grew out of reason of the of own aforesaid the price charged for the work or the assaults Greathouse. quality done; ap- of 'work that no elapsed preciable beginning reports many The law contain of cases dispute assault; until that said injuries against suits master in- manager undoubtedly service had authori- allegedly acting flicted the servant while ty dispute in the matter in subject and the employment. of course This matter of same was of direct concern seems to have’ been a' fertile fiéld for liti- to the master. many jurisdictions. gation has law rely also on the Appellants considered been decisions clarified Co., Transit present difficulty. not now much The Felder v. Houston Tex.Civ. does correct problem applica- App., consists in 203 S.W.2d real a Fel- with the particular der’s automobile collided rear of the law facts tion Tex.Com.App.1924, Company Briefly, In the matter Transit bus. S.W. 135. buses, company 'collisions facts were involving said as follows: Commerce operator the Street in the City was the of Dallas extends east west, get the name of driver of ending bus at the east west vehicle, on his end a bridge other the number license across the Trinity River. plate pertinent river, information. On the other east side Railway Goodson, operator, Company went back to bus running three tracks north purpose. for that re and Felder’s car Felder south across Commerce Street. It name, reviling busy to state his being fused started thoroughfare, Company Goodson, car, kept out hands got flagman laid his there stationed to control *4 shoulder, stopped prevent Goodson’s Good- traffic and collisions. On the oc- starting get question, son as he rear casion was to the to in a teamster driv- was number, whereupon the car license west ing Good- on Commerce Street and started struck Felder in tracks, son face with his to cross said when he stopped was money changing by box. The trial the flagman court prevent to a collision with judgment rendered engine the Transit a Com switch approaching pany, ap north. notwithstanding engine the verdict. On The switch passed by, but peal to' Appeals, flagman the Court of Civil the the saw that it would soon reverse rendered, case was reversed and which its course and re-cross Commerce Street. by Supreme decision was affirmed He refused to allow teamster to cross Simpson, speaking Court. for that passed until train had back across the Justice said, 880, court 881: The street. teamster impatient seemed at being delayed and the flagman cursed and “There is difference little between him, abused a applying epithet, vile him testimony of Felder and Goodson «.bout whereupon the teamster got out wag- of his controlling most of the It facts. un- is on, driving hand, his whip in and started Goodson, disputed in keeping with his flagman (cid:127)toward the hurriedly who rather duties, get went Felder’s car to certain retreated to his shack the bridge near information, and while thus his about mas- closed door. The teamster followed ter’s business and before finished he him to within a feet few shack when mission, his ques- committed the assault in n hewas stop by a advised party, third tion. This was closely assault con- he reopened which did. The flagman his performance nected with the of Goodson’s teamster, door causing and shot his prevent duties as to conclusion aas Among death. by other facts found Felder, matter of law when he struck jury, that at time of the killing, he had ceased to act as company’s flagman acting was within course agent upon and had begun act his own his employment flagman responsibility.” person particular was unfit for that We note that when Goodson went back work. The case was affirmed information, get to Felder’s car to certain 192, Court of Appeals, Civil 250 S.W. he was performing carrying Appeals, mainly the Commission of be- out instructions incident to his employ- jury cause the that the flagman had found He clearly acting ment. was mas- his shooting, acting at in time ter and Here, about his master’s business. employment. the course of his facts supra, as Gallo happened it all analogous said case are not facts time, in so closely short a and was so appeal, appear in this will fol- as from the performance connected with the of Good- excerpts lowing Commission master, son’s duties for yet as unfin- Appeals’ decision S.W. ished, [261 136]: prevent as to the conclusion as a law, matter of Felder, that when he struck jury “The found that at the time the upon had embarked mission flagman shanty got to the went own. gun and killed continuing Carter Another appellants case on rely Carter, which duties watchman to as deal with is Chicago, Ry. R. I. Carter, that, & G. and we understand law to be Co. v. if may ob- upon trial non render evidence court any substantial there was veredicto, contention finding, the ver- stante their predicate such Special No. jury’s that the answer to Issue he disturbed cannot dict of difficulty, opinion court, that at the time of the fatal of what our regardless this scope acting Walton of Civil facts. Court as real say: employment, wholly support without Appeals in their “ evidence, court was and that the trial that the tended show ‘The evidence matter of law concluding correct as a took across the train which movement of Walton clearing process of but the track was employment. within the ready the train was track, main Appellee Supreme cites the Court go- intersection across the to come back Ry.N. v. Ander was of International & G. Co. the altercation ing a-siding when son, 1040, 27 82 Tex. shooting.’ S.W. ended Am.St.Rep. Gaines which Justice finding of are bound “And we applicable states the law as follows: and, stated, train had fact, after the cursing the passed, flagman was still for the act hold master liable “To teamster, show that tend servant, necessary *5 it his is trying keep the still to flagman was
the to do authority servant should have the crossing the tracks until teamster from may particular act act. The of the servant go- the after street recrossed train had the orders, express yet contrary of be That the teamster was siding. on the ing may liable. But the must the master be act scope em- clearly acting within the scope the general the be done within personal contro- time the ployment at the done authority of the It must be servant. doubt, began no and the there can versy business, of the master’s furtherance in_ clearly difficulty show that the also facts object accomplishment the the for it the time be- from continuous one was employed. the For for which servant as shooting, gan found until performs the servant mode which difficulty was time of jury. The whole engaged perform, he is to if short, extremely diffi- it would be very another, wrongful, injury and to just to determine when cult us liable, may ex- although master is scope of ceased to within the act flagman particular pressly forbidden the But act. began to as his own employment and act question implied whether the act be can acting master, so at time of if he upon general authority conferred peculiar facts under the shooting, and must, depend upon general, the servant do not think the law case we of this engaged nature of the he is service say flagman just when the to can undertake perform, to and the circumstances of agent, or he did so act as ceased particular case.” cease, jury finding of on but that the case, ejected In man brakeman said govern. should that matter attempting who was board box car evidence from which the being “There freight leav- of defendant’s train as was flagman might that the was con- jury find ing trespasser a station. The fell and was time he killed in his duties tinuing injured. severely interposed defense One and, found, teamster, having by the defendant brakeman shooting having that the also found was not within the continuation of the contro- an unbroken employment. plaintiff prevailed findings,” versy, disturb these we cannot court, appeal, Supreme trial held that brakeman by ap- had neither Court authorities cited To review all implied express authority eject per- nor this to an pellant prolong un- train, being authority now notice sons from we shall some length, and due engineer, the conductor or upon by appellee vested authorities relied of the reversed case was and remanded. Appellee of the case. con- the affirmance appeal, uncontradicted be evidence indulged inferences must all cedes that Walton, employee that the had no showed verdict before favor;
195 authority except deliver ice from sell and v. International & G. N. R. Co. An- derson, territory. supra, He was customers within and reviews numerous cases disputes. on adjust appellant relies, not authorized to settle or here such Chicago, required He the rce sold Carter, R. I. supra, collect & G. R. Co. v. all sold company Tex.Com.App., 135; account Hidalgo 261 S.W. v. Co., Gulf supervised & S. and unsold. He C. F. R. Tex.Civ.App. 60 433, manager. 128 manager quote was asked: in part S.W. 683. We from said review of cases: “Q. checked out From the he'was ice, own, with his load was he “We turn a consideration of the cases mean, supervision any I appellee, without further cited are, principally: you them, any Chicago, of the rest of un- Carter, R. I. & Co. G. R. v. su pra; Clark, company til -he came back into the office Davis v. Tex.Civ.App., 78 S.W. 1008; Id., Well, 2d after A. having delivered ice? 129 Tex. 105 S.W.2d report anywhere 190; Gulf, Cobb, he didn’t else. He came C. & S. F. R. Co. v. Tex. plant Civ.App., got back if 45 anything fur- dismissed; error S.W.2d ther.” Gallo, Central Motor (Waco) Co. v. Tex. Civ.App., 821; 94 Fargo Wells & The statement from Anderson Express Sobel, Co. Tex.Civ.App. 62, 59 above, quoted is still law in Texas refused; 125 S.W. error New Ellers Therefore, given effect the courts. Fishing Stewart, lie Ky. Club v. sentence, (the complained “It act must of) 598; L.R.A.,N.S., S.W. In each of done master’s busi- furtherance of the decisions, the above (assault the act or in ness, accomplishment and for the jury) was committed the servant in do object employed,” for which the servant *6 ing that employed which he was to do. especial here, application has as will be * n * example, case, For in the Cobb the pointed subsequently out. injury an followed with interference of Life National & Accident switching engine foreman; duties the of Ringo, Ins. v. Tex.Civ.App., Co. 137 S.W. and, in Central Gallo, supra, Motor Co. v. 828, 829, denied, point 2d writ with in repair where the shop manager, authorized what has been said above. P. Brown L. adjust customers, to differences with as employee company was an of said with au patron engaged saulted while duty, in such thority premiums to collect 'credit same and the (94 822): court said receipt in Ringo books. family and had “ ‘The real test liability of the master’s policies in company, four pre is, not employment whether the servant’s payable weekly. miums Brown called at contemplated the use of force or whether home, Ringo made a collection and complained the act of was done in accord- duplicate receipt same books, credited instructions, ance with the master’s but kept by family. one of which was complained whether the act of direct- arose dispute arose Ringo A between and Brown ly prosecution of and was in out done payment as to whether the made was business that the servant em- was or one or two week three weeks. Brown ployed to do.’ They was told to not leave and return. both moved to analogous the front of “More present the house when to the record Ringo Gulf, Brown Hidalgo Co., invited to “come outside S. C. & F. R. su- just fight facts, will pra, briefly, we it Ringo out.” did where the Phil- were: injured. watchman, case, lips, and was On employed guard trial was to Ringo prevailed, Ap property but Court of Civil railroad and to see freight peals depot reversed and rendered same in at the away by favor was carried author- company, of the insurance persons. challenged holding ized He teamster authority Hidalgo’s right Brown’s was collecting limited to to load articles from the receipting premiums depot and, wagon and that onto a words, after some to adjust adjacent was not authorized settle or dif over to an house, went boarding in the arising ferences repaired course of his em teamster also after ployment. opinion Said quotes cites and completing Phillips load. there asked n foreman, Annear, appellee’s erected on and land
defendant’s warehouse attached to that by appellant’s freight, about and was assured without construction crew appellee’s in consent, properly knowledge same checked out been immediately ensued such a tres Hidalgo. colloquy appellant manner as to A render passer Hidalgo, Branton erecting same between the thereon. watchman against suit went A see Beardon times with which the latter was killed. several thereto, a directed done company nothing resulted in reference but was the railroad appeal An was about the occasion verdict for defendant. it Beardon. On assault, expressly re- Branton error had started affirmed and writ of telephone office, quote coming Supreme met We Beardon fused Court. epithet out. Branton directed an Judge McMeans: Bear- don, him, “ who injury. In causing struck in this case shows testimony ‘The court, against the trial Branton recovered Phillips’ duty under part company. stating Beardon After ascertain whether employment, many applicable citing of law rule into his being Hidalgo loaded freight authorities, Judge Hickman said: proper authorized wagon had been “Applying this test to the facts of inquiry authorities, approach and by appellee’s instant own as disclosed 'clear- Hidalgo regard'was an act testimony, inquiry arises: what think, scope ly, of his duties within furthering manner was Paul Beardon object accomplishment appellant business of when committed employed. Hidal- Phillips According appellee’s assault? own him, apparently reply satisfied go’s testimony, he was an struck Beardon as away, leaving turned protest he without insulting immediate resentment of loading. may complete It Hidalgo applied by epithet him to Bear- Beardon. is, that, speaking true, and doubtless engaged don not the erection of matter at Sandal’s about Annear telephone pole appellee’s land, upon the- nor Hidalgo’s satisfy himself house to removal thereof oc- when assault true, he was still statement him curred. The assault within itself the master acting for necessary to and did not have the effect passed, employment. What further *7 continuing alleged trespass either of the Hidalgo, colloquy the between himself and appellee’s it removing of frorh land. While latter, clearly the was shooting of and the telephone pole erection the the of the was duty any he owed to discharge not in of difficulty, remote of cause the it was too any employer, nor in furtherance of his appellee remote to connect with it.” employment intended to object his his were accomplish, part therefore acts judgment against and That of the the any upon the defendant not visit company such as the re- account of assault was (cid:127) consequences responsibility the and versed rendered. in this principles involved ensued. The Brown, The case of A. B. C. Stores v. fully in cases appeal discussed the are 725, 726, Tex.Civ.App., 105 al- is ” cited.’ point. in Brown was a customer groceries carried some to be' checked point is Home very Tele much A case argument An Branton, the cashier. arose over 7 S.W. phone & Electric Co. said, court, amount of the Brown “You opinion by purchase. 627, 629, the by this 2d money.” groceries keep keep the the Hickman, I’ll Chief Paul then Judge Justice. followed Brown to car The cashier manager appel local Beardon was off, call- Brown drove outside store. Star, duties and with such Rising lant at a vile name. drove ing Davis Brown usually upon conferred authority as are block, back then came into- the Appellant around exchanges. of managers local store, down, whereupon knocked him Davis highway, telephone along line erected injuring him. evidence showed guy an pole, wire and particular but Cammaclc, pres- manager, the store the cause of trouble chor which separated di- parties, then were ent Paul Beardon appellee and between customer, Dyer porter give appeal, Brown struck Tucker. On negro rected the injuries. Appeals sued part: Brown Court'of Civil said in first for his aid Civil The Court of judgment. recovered “Admittedly, the assault resulted from favor rendered in Appeals reversed Buddy Dyer’s adjust- refusal to make the that Davis Company, holding of by plaintiff, ment contended for but was Brown, not striking impliedly servant even authorized setting out employment. After perform master to duties of this character? cases, the court said: in such law Dyer’s We think not. sole mission for employer day assault, on the of the apparent, we “In before us it the case particular the sale beer to this customer did think, Brown assault on that Davis’ equivalent of cash so far rule as the liability; or within the not come Beer Company was concerned. It had dis- original it assumed even if charged nothing; this market with neither ref- pute and Davis with between Brown Dyer had it ever authorized to reconcile groceries did payment for erence to customers; accounts with credit the diffi- duty to his line Davis’ originate culty arising Dyer’s from personal exten- employer, and was furtherance Katz, which, sion of credit business, appel- with employer’s the assault and still lant likewise had no concern. And the this suit battery which .forms basis of party assaulting (Dyer) being engaged The assault occurred certainly did not. at the time anything employment subsequent argument and to the after contemplated, in a purely but transaction plaintiff, Brown, left defendant’s personal plaintiff’s employer, own premises returning and returned. to the In conclude, notwithstanding so, trade, an- not to store Brown did swers, respondeat that the doctrine of su- personal mission to resentment satisfy his perior inapplicable act violence Davis, alleged against by Davis’ aroused pictured.” here purpose him and for mistreatment of manager, reporting Cammack. Numerous other authorities necessary that it him was not doing might effect think, same be cited. We Davis, any dealings at (cid:127)to have all with however, unnecessary that it is to do so. battery followed, (cid:127)the assault very It is clear cases considered provoked unprovoked whether will- liable,for above that to hold the master ful, personal between matter Davis servant, tort things ap of the certain must having no and Brown relation to em- pear (a) tortious act : must have aris ployer’s business, and the is-in defendant performance en of a respect plaintiff no liable to for it. authority servant under the upon conferred *8 him; that Davis’ plain “The fact assault on the (b) it must have been in furtherance tiff duty did in the line business; occur (c) of master’s nega and employer, to tively, his but arose out of a matter the servant must not have stepped personal himself, to fully distinguishes this aside his engage from master’s business to as Fargo from such cases & Wells a Co. in mission of own. Express Sobel, v. 59 Tex.Civ.App. In this the evidence did not Gulf, Ry. S.W. &C. F.S. Co. v. the exact cause disclose of first .the assault Cobb, Tex.Civ.App., 45 S.W .2d cited Walton, circumstances strongly sug appellee.” gest that was due to resentment for veryA similar situation arose in the case passed that something between them on a Tucker, of Beer v.Co. Tex.Civ.App., day preceding Jax on Sixth Street. On the Buddy Dyer, an em- afternoon, Sunday fatal an ice card ployee Company, of Beer was a beer displayed the front of at Greathouse’s res delivery Following argument man. be- pounds It indicated the idence. number of Dyer Tucker, tween customer, over of ice desired. Under his instructions an alleged payment error of in delivery, $0.50 of and manner Walton should into, credit extended employee to the have delivered the ice refrigerator plaintiffs; ment for have house, it and have that he would collected for
inside to no move been authorized for said way. he to direct verdict gone made But defendant, in ren- ice, instead, he called not err and that deliver the did dering judgment appellee, truck. It notwith- out to come Greathouse quarrel standing jury during that verdict. was not shown afterward, any time or ensued Appellants’ point alleges error second ice, undertook deliver Walton non rendering judgment in trial court theory that said support to fact lends having first obstante veredicto without that had -something grew assault out notice thereof. given appellants reasonable rate, it any would transpired before. At notice The record that while written shows that when Wal-. to assume far fetched orally attorneys given, appellants’ was not cab, advanced toward ton alighted from agreed setting -to the motion steps, and Greathouse, a few retreated who present participated judgment and thereby him, -that Walton assaulted Appellants in the there- hearing thereon. employ- duty under his performing some injury by waived the notice. No formal master’s ment, in or furtherance of point. shown. overrule the We Telephone Co. Home & Electric business. is af- judgment of trial court Branton, first supra. the said After firmed. truck, climbed fight, returned to Walton -Rehearing. On It was and closed the door. into cab very and in- Appellants filed a have able that told Greathouse then that Mrs. Walton above teresting rehearing motion in the ice, get have it him- he would got if he cause, alleging (a) and numbered entitled pick to him the She delivered ice self. in original we in separated pounds erred our fifty with which have holding the trial court it into the house and carried larger block verdict for in authorized instruct the cab. But been remained while Walton here, defendant, appellee and that the court into the house taken when the ice had been rendering judgment notwith- in pan water and did not err by Greathouse verdict; were in out, (b) that we payment brought standing made cloth plaintiffs ice, holding the Walton then came error our Mrs. Walton for notice of had waived such -to the blood below of the truck have court to the rear judgment non obstante vere- hearing for courts have from his face. The washed deduce a hard and fast dicto.' not been able to facts, every state of applicable rule under carefully reviewed the We employee or a servant turns as when our hold cause adhere to record assigned him en- away opinion, except ings original test of his own. One gages on a mission assignment there error. We the second applied in cited cases the Carter other assignment. A overrule the first care fore assigned mission been is whether re-examination of -the discloses ful record in- the assault completed at opin original error our said test to Applying inflicted. showed a holding the record ion Walton, we are assault second judgment notice for notwith waiver assuredly conclusion that he forced standing verdict. *9 employer. not now for no recitals with court below contains tongs, with him the ice that he took fact appellants, to notice to or their reference back, malice, behind showed concealed hearing, on recitals appearance nor purpose and fixed resentment reasonably show as waiver of would such not in furtherance of his revenge. It was Conccdedly, was not given notice notice. business, personal employer’s but matter only question toe reference -of of his own. appellee’s was found brief. a waiver 301, evidence, We that under the Texas Rules of conclude Rule Civil Pro Under cedure, holding court did not err in and decisions con trial courts same, particularly holding struing facts evidence were insufficient when question every intendment, support on the identical judg- here
given Courts appellee affirmative for involved, contending there no where we should in the reverse showing recitals the judgment judgment as to render notice appearances appellants for judgment to notice or as We adhere -the verdict. defendant, on the to our judgment question. entered former this reg- presumed be be motion would not Appellants say that to now reverse a re- Such be reversed. ular and should the judgment appellee’s because notice of does not necessitate versal motion judgment for notwithstanding merits, proceed- again on the be tried verdict is not only shown cause ren subsequent be must set ings verdict judgment delay dition of the same de aside. cision questions presented and cause therefore, assign We, sustain the second expense. They them to incur additional appellants extent that ment of point now abandon sustain on w'e in n theirfirst cause be reversed and remanded with rehearing. motion ap ’Since aside structions -to trial court set pellants point abandon their and withdraw proceedings all heretofore and orders judgment court rendering erred in subsequent said cause and made notwithstanding the verdict without notice verdict; of a legal that due and notice appellants, the judgment by this rendered not question judgment on the hearing 30, court on December ap granting given appel the verdict withstanding pellants’ first motion rehearing and 're lants, en-' upon hearing the trial court the trial versing judgment court’s and re orders judgment, or make such ter such manding cause now aside set may proper premises, deem judgment trial court is affirmed. original and in accord our with 301, R.C.P.; opinion. et See Rule Hines al., Parks et 128 Tex. 96 S.W.
ad. v. Wallace, 970; Tex.Civ.App.,
2d Wheeler v. 1043; v. Woodmen of 167 S.W.2d Johnson Soc., Tex.Civ.App., Life Ins.
the World Co., 331; Gentry Motor v. Central 215;
Tex.Civ.App., Seastrunk 100 S.W.2d ux., Tex.Civ.App., S.W. v. et Walker NAT. OF CITIZENS BANK AKINS 2d 996. DENISON. No. 4586. Rehearing. Motion On Second Appeals El Court of Civil Texas. Paso. PER CURIAM. Nov. 1948. 3, 1948, we On December affirmed judgment of the trial court which ren- Rehearing Denied Nov. appellee’smotion to disregard dered on 30, 1948, On con- verdict. December'
cluded that-.the record failed to show notice judgment appellee’s motion notwith- We, therefore,
standing grant- the verdict. (cid:127) appellants’ rehearing
ed first motion for
and reversed the and remanded with cause instructions to trial give notice
court to on said motion and thereof
upon hearing to enter judg- such might
ment as trial court then deem
proper.
Thereafter, appellants filed their second rehearing, insisting,
motion as hereto-
fore, that the trial court erred in render-
ing notwithstanding the verdict