Davis v. Lindsay Furniture Co.

ELLIOTT, J. John F. Davis and Mae-dell Davis, his wife, claim of Lindsay Furniture Company, a commercial partnership and firm, and J. B. Lindsay and J. K. Lindsay in solido, alleged by plaintiff to be members composing said firm, $1,057.25 in damages. Their petition alleges that on Tuesday evening, June 11, 1929, one N. B. Lindsay, agent and representative of defendants, acting within the scope of his employment, came to their house for the purpose of collecting a bill due Lindsay Furniture Company, on account of some window shades; that plaintiffs were both absent at the time he entered, but plaintiff Maedell Davis arrived while he was in the house and found him in the act of jerking the shades down from the windows,, injuring some of them beyond repair; that she protested against his actions, upon which he assaulted her with a stick which broke while he was striking at her; that, after violently striking her over the head with the remaining portion held in his hand, he finally struck her in the face with his fist, knocking her across the bed, where he beat her in the face and on the neck until she was bruised and bleeding, using at the same time the vilest sort of language, etc. The petition further alleges that Maedell Davis did not commit any offense against defendant nor their agent,, and that the assault which he committed on her was in no manner provoked; that the occurrence was due entirely to the fault of the said N. B. Lindsay, defendant’s agent, while acting within the scope of his employment. The petitioners allege other acts of violence and wrong conduct on the part of defendant’s agent, but further recapitulation of such matters is not necessary for the purposes of the present appeal. Lindsay Furniture Company and J. B. and J. K. Lindsay, 'appeared by answer filed July 2, 1929, and put at issue every important fact alleged by plaintiffs. They admit that their agent, N. B. Lindsay, went to the house of the petitioners at the time stated for the purpose of collecting a balance due them by the plaintiffs for window shades, but aver on their part that it was under a promise on part of • the plaintiffs that they would be at home at the time, and either pay him the balance due on the shades, or surrender them back to the defendant; that petitioner Maedell Davis had concealed herself in the house in order to avoid meeting their agent on his 'arrival, pursuant to said agreement; that their agent, not finding either of the petitioners ready to pay the balance due on said account, as promised, commenced to carry out the other part of the agreement (that is, to take possession of the window shades), when the said Maedell Davis rushed into the room with a broom or mop and assaulted him therewith; that their agent did nothing more than defend himself from her assault. ■ Defendants, further answering, adopt and justify the act of their agent in taking-down the shades and in defending himself from plaintiff’s assault. They pray that the demand of the plaintiffs be rejected and that their suit be dismissed, because of the facts alleged in their answer. On July 29, 1929, defendant filed an ex [217] ception of no right or cause of action, which was sustained by the court and the suit dismissed. It is from this judgment that the plaintiffs have appealed. The ruling sustaining the exception and dismissing the suit was erroneous. The petition of the plaintiffs, and the answering averments, adoption and justification by defendants of the acts of their agent, of which plaintiffs had complained, are equivalent to saying that he was acting within the course of his authority and employment by defendants. The facts alleged by defendant are considered as denied by the plaintiff. Code Prae. art. 329. . The petition and answer states a cause of action. The exception should have been overruled and the case set down for trial on the merits. Defendants, arguing in their brief, cite authorities and contend that the exception was properly sustained. They overlook the situation created by the answer, and do not take it into account. For these reasons the judgment appealed from is annulled, avoided, and set aside. The exception of no cause or right of action is overruled, and the case remanded to the lower court to be proceeded with on the answer filed, as the law directs. LECHE, J., not participating.