263 S.W. 646

Lancaster v. Crosby

Decided June 10, 1924

Court of Appeals of Texas · decided 1924-06-10

R. Warren, Judge. Action by E. W. Crosby against J. L. Lancaster and others. Judgment for plaintiff, and defendants appeal. Appellee resided in Gilmer, but on the night of December 28, 1922, was in Big Sandy for the purpose of taking a train over the Texas & Pacific Railway Company’s line of railway to Dallas, where his wife was sick.

Cited by 2 later decisions — most recently November 1937

2 state decisions

Relies on Lange v. Lawrence · Equipment Co. v. Luse · Holt v. Uvalde Co.

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1924-06-10

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WILLSON, O. J.

¶1 (after stating the facts as above). [1, 2] In the preparation of their brief appellants disregarded the requirement of rule 31 for the government of Courts of Civil Appeals, that a brief shall contain “a clear and accurate statement of the record bearing upon the respective propositions, with a reference to the pages of the record,” and therefore are not entitled to have their ’contentions here considered. Engelman v. Anderson (Tex. Civ. App.) 243 S. W. *648 728; Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1104; Rubber Co. v. Waldman (Tex. Civ. App.) 257 S. W. 929; Holt v. Uvalde Co. (Tex. Civ. App.) 258 S. W. 285; Lange v. Lawrence (Tex. Civ. App.) 259 S. W. 261. However, we have read the record, including the testimony in the statement of facts, and considered same with reference to the grounds of the objection to the judgment, and have concluded that no reason, legal or otherwise, why it should be set aside, has been pointed. out. Therefore it will be affirmed.

¶2 <§r=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Status

Disposition: Affirmed

Case posture

Disposition: Affirmed.
Posture: Appeal from District Court, Upshur County; J. R. Warren, Judge. Action by E. W. Crosby against J. L. Lancaster and others. Judgment for plaintiff, and defendants appeal. Affirmed. Appellee resided in Gilmer, but on the night of December 28, 1922, was in Big Sandy for the purpose of taking a train over the Texas Pacific Railway Company's line of railway to Dallas, where his wife was sick. While waiting for the train in Big Sandy, he was assaulted by one James Bordeaux and one Henry Revels, who, the testimony indicated, acted together in making the assaults. This suit for damages, brought by appellee against appellants as the receivers of said railway company, was on the theory that they were liable for conduct of Bordeaux and Revels complained of. Bordeaux, who held a commission as a Texas Ranger at the time, was employed by appellants, they alleged, to watch and protect the properties of the railroad. With reference to instructions given to him by appellants and his authority to act for them, Bordeaux testified: I had authority and directions from the railroad company to arrest anybody whom I saw fit to arrest who was on the property of the railroad in Big Sandy, in other words, who I thought was violating the law or anything like that, or whom I saw fit to arrest. I had instructions to keep them off, arrest them, and I also had authority to drag them out of the depot if they refused to come out when I told them to do so. I had authority to protect the depot, keep it free from bos, hobos, or anything else, any trespassers; that was my instructions. It appeared from the testimony of appellee as a witness, which was strongly corroborated by the testimony of other witnesses, that Bordeaux and Revels, after taking a boy named Graham into custody for unlawfully, as they thought, riding to Big Sandy on one of appellants' freight trains, carried him to a room in the depot. Part of the testimony of appellee as to what afterwards occurred was as follows: That room was right behind the ticket office. I judge they stayed in there with the boy about ten minutes. I heard some part of the conversation in there; that is, I could catch a little of it once in a while. I heard the voices of both Revels and Bordeaux. I heard some curse words. I heard them say in there; that is, about the only sentence that I got was `Where you going, you son of a b_____; what are you doing around here?' That is about all I could catch; that is, the only sentence that I could catch. No. I did not hear the boy say anything; that is, I could hear him crying and I could hear him saying something, and I knew that he was talking, but I did not know what he was saying. They were talking louder than he was. The Graham boy stuttered very badly. After I heard them talking in there, they brought the boy out and carried him off down the railroad track about 100 yards. I walked on up that way, and when I got close enough, where I could see, I saw them throw a rock at him. I do not know whether the rock struck him or not, but he fell down over the railroad. I think it was Revels who threw the rock. Revels was at the side of Bordeaux, and when he threw the rock they turned and saw me coming, and they did not follow the boy. I asked him if there was a fine against the boy, if there was I would pay it, or if I could make bond I would make his bond for him. I don't know just how near I was to them when I said that, but I was as close as from here to you. I told them that I would buy him a ticket or pay his fine or make his bond for him, either one. They told me that they didn't need me down there attending to their business; it was Bordeaux who said that; then he asked me did I know I was interfering with the law and I told him, `No, sir'; and by that time they had got up close to me; Revels was in front and Bordeaux behind; Bordeaux told me to stick up my hands and he touched me in the back — I don't know whether he had his hand or what he touched me with, but I stuck up my hands and he run his hand down around me and searched me and when I had my hands up Revels hit me in front, and by that time Bordeaux was through searching me, and I turned and run. I run toward the station, toward the waiting room; when I ran away one of them hollered, `Stop! stop!' I couldn't tell which one it was; that I heard Bordeaux say, `I will get him; I will get him,' and that was all I heard; if there was any rock or anything thrown at me I did not know it. I went into the station waiting room. When Revels struck me up there, he struck me in the face, along here on my cheek where I am now indicating; he hit me once there on my cheek. No; he did not say anything when he struck me. When he struck me, my hands were up in the air, and Bordeaux was behind me. No; he did not have hold of me, not at that time. When I went into the waiting room of the depot, I sat down I believe between Doctor Robertson and Mrs. Robertson. The next time I saw Bordeaux was when he came in the waiting room door. It was just a few minutes, not over two minutes, after I had gone in there and sat down. With reference to what he did and what he said when he came into the waiting room I will say that I don't remember now what he did say, but well, I believe he did say, `Come and go with me,' or something like that; I am not sure whether that is the exact words he used or not. No; I did not make any reply to that. He then caught hold of me catching me first by my overcoat; he first caught my overcoat which was on me at the time; he caught my overcoat in the back and jerked that off of me; I do not know what he did with it when he jerked it off of me but he dropped it to the floor I think; I did not see what he did with the overcoat. He next then grabbed me by the coat collar right back there where I am now indicating. I was sitting in the seat when he was doing all of this to me. No; I did not say anything to him when he grabbed me. I did say something to him at some time while he was in the waiting room that I remember of; when he started out, I told him that I had not done anything and he did not say anything then. At that time he had me right by the back of the coat collar there, the shirt collar. He then carried me out the station door; when I got on the outside of the station door Henry Revels was at the station door, and he walked along by the side of us. Henry Revels did not have hold of me; that is my recollection. Yes; I was scared and excited; I was very nervous too. Mr. Bordeaux had hold of the back of my neck, there where I am indicating I know. I don't know whether he had hold of me anywhere else or not. I don't remember whether he did or not. I was then carried back back of Mr. King's store, I believe it is, to the corner of a store. Yes; that is northeast from the depot. While I was being carried to this point, this man Revels was right at me, right at my right side all the time. Bordeaux did not turn me loose at all until we got around back of the buildings. I was hit once before I got around there by Henry Revels. I started to put my hand — drop my hands, and he said, `Stick up your hands, you son of a b_____;' and I threw up my hands, and then he hit me in the face. At that time Bordeaux had hold of the back of my neck. No. Bordeaux did not say anything then to Revels about striking me. I suppose they were about 75 feet at that time from the place where they finally carried me to. Yes; Revels said, `Stick up your hands you son of a b_____,' and struck me. Yes; I was then carried around back of the store. No; I was not struck any more between that point and the back of the store, not till we got to the corner of the building. When we got there, Revels hit me twice more, and Bordeaux said to him, `That is enough; don't hit him any more.' Bordeaux had hold of me when Revels struck me those two times. Bordeaux had hold of me till he got through hitting me, and he finally told Revels not to hit me any more, that that was enough. Yes, there was some conversation occurred there. He asked me where I was from and I told him I was from Gilmer, and he asked me where I was going, and I told him; I told him I was going to Dallas. Yes; I told him why I was going to Dallas. I told him that my wife had phoned me to come over there; that the doctors wanted me to be there where she was, and then he told me, he said, `You Gilmer people coming down here trying to run Big Sandy and I am going to show you sons of b_____ that I am put down here to run it;' said `The state is paying me $225 a month to run Big Sandy and I am going to run it to suit myself.' There was not any more conversation occurred then until we got back to the corner of the restaurant; that is, the corner of the building next to the restaurant. Dr. Robertson was standing there, and he told him if there was any fine or any bond to make that he would make it, that he would wake up somebody there and make the bond. In reply to that Bordeaux said to him that he did not need him interfering with his business, said he had carried me around there and give me a good talk. Yes; he used some curse words in connection with that. He said — I don't remember just now what he did say; I don't remember what he said. No; nobody had hold of me at that time. When Revels struck me up there that time, he hit me in the eye the first lick; the other time he hit me to the side of the neck, the nose or on the chin here, where I am now indicating. No; my nose did not bleed; the effect on which it had on my eye was that by the time I got back up to the depot my eye was practically closed. When Dr. Robertson spoke to him and said that he would pay my fine and make my bond and Bordeaux replied to Robertson that he did not want him interfering with him. The case was submitted to the jury in a general charge, in which they were instructed to find for appellee, other conditions concurring, if they believed that Bordeaux acted within the scope of his duties as appellants' employé when he ejected appellee from the depot, or believed that Revels assaulted appellee while Bordeaux had him in his custody and that Revels and Bordeaux were acting together in making such assault, or if Bordeaux knew the purpose of Revels and aided him or encouraged him by words or acts in making such assault. The jury found in appellee's favor and assessed his damages at $4,000.

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Court of Appeals of Texas