Martin v. Green , 86 S.W.2d 270 ( 1935 )

Appellant, C. D. Martin, brought suit against appellee, F. C. Green, in the district court of Archer county, alleging that on or about April 26, 1934, the defendant without any just cause or provocation, assaulted plaintiff by striking him a violent blow with his fist in the plaintiff's face, breaking, bruising, and otherwise injuring his nose and face, as the result of which the plaintiff has suffered excruciating pain since the assault, and believes and avers that he will continue to suffer therefrom throughout the remainder of his life; that the assault occurred on the public streets of the city of Olney, in Young county, within the presence and hearing of a large number of witnesses; that at that time the appellee cursed and abused appellant, the exact language the appellant does not know and is unable to allege, but does allege that such language reflected upon his integrity and decency as a citizen; and that by reason of such assault and such insult the plaintiff has suffered, and will continue to suffer, great humiliation, and appellant prayed for damages in the sum of $5,000.

Appellee addressed a number of exceptions to the plaintiff's original petition, none of which were acted upon by the trial court in so far as the record before us discloses, and all of which were waived by appellee. Appellee answered to the merits, alleging in substance that appellant provoked the assault and used abusive language to and about appellee.

Appellant testified to facts sufficient to raise the issues which are found in his pleading, and was amply supported by the testimony of several other disinterested witnesses, including the physician who treated the wounds received by appellant at the hands of appellee.

At the close of the introduction of testimony on the part of the plaintiff, appellant here, the defendant below, and appellee here, rested and introduced no testimony, but requested a peremptory instruction in behalf of the defendant appellee, which request was granted by the trial court and judgment rendered that plaintiff take nothing. From this peremptory instruction and the judgment which followed, plaintiff below has properly appealed to this court.

The original petition states a cause of action. The trial court erred in giving the peremptory instruction for the defendant and in rendering judgment in his behalf.

The judgment of the trial court is reversed and the cause is remanded for a new trial.