75 S.W. 484 | Tex. | 1903
Defendant in error brought this action to recover damages for an assault and battery alleged to have been committed upon him by McLeary and Robertson while acting as servants of plaintiff in error in discharge of their duty and within the scope *73
of their authority as such. It was an undisputed fact that he was seriously injured in an encounter with Robertson and McLeary, and the principal questions at issue were whether or not their acts were justifiable on the ground of self-defense, and, if not, whether they were done in furtherance of the business of their employer, the plaintiff in error, in the scope of their authority, or were outside the line of their duty as servants and purely personal. We agree with the Court of Civil Appeals that these questions were correctly and sufficiently submitted to the jury by the charge, and that there was no error in the refusal of requests for further instructions. The view of the evidence upon which the writ of error was granted was that it conclusively showed, that, if there was an unlawful assault, it was committed either in resentment of personal affronts offered by plaintiff to defendant's employes, or as a punishment for conduct of plaintiff, already completed and ended, in roughly handling freight under the care of the employes. Closer examination of the evidence has led to the conclusion that there is some which at least tends to show that what was done was with the purpose, either of expelling plaintiff from the house in which the freight was kept, or to prevent further injury, which they believed to be impending to the freight itself, and that, therefore, this court can not interfere with the verdict and judgment upon this ground. In view of repeated discussions by this court of the principles of law applicable to this subject, and of the correct discussion and application of them in the opinion of the Court of Civil Appeals, elaboration would be unprofitable. The other grounds for reversal were, we think, also, properly disposed of by the Court of Civil Appeals. One of them will be briefly referred to in order to make clear the view upon which it is held not to present ground for reversal. There was an irreconcilable conflict in the evidence, and the court gave this instruction: "You are the exclusive judges of the weight of the evidence before you and of the credit to be given to the witnesses who have testified in the case. If there is a conflict in the testimony, you must reconcile it, if you can; if not, you may believe or disbelieve any witness or witnesses, according as you may or may not think them entitled to credit. In civil cases the jury is authorized to decide according as they may think the evidence preponderates in favor of one side or another." We think that trial courts should not instruct juries that they must reconcile conflicts in testimony. As was said in Houston, East West Texas Railway Co. v. Runnels,
It will be observed that in none of the cases where such an instruction was given was it held, of itself, to be cause for reversal. Cases might exist in which such a charge would be mischievous, and the most that can be said in its favor in any case, is that it is a harmless generality.
Affirmed.