On Motion for Rehearing.
In originally disposing of this appeal, the appellee’s cross-points Nos. I to XII, inclusive, were overruled, upon a holding that they had been waived, because the charges and requested instructions upon which they re'sted had not been set out in full, as required by Rule 418, (c) (ii), Texas Rules of Civil Procedure.
*836On reconsideration of that feature, however, this court subsequently permitted the appellee to file an amended brief fully covering' all of such cross-points, which has now been considered, the court being constrained to grant that relief, under these authorities: Rule 431, T.R.C.P.; Franki, Vernon’s Texas Rules of Civil Procedure 374 (1946 Supplement). This court has also heard not only the written motions and arguments of the appellee for rehearing upon the whole cause, but also, at its request, oral arguments from both sides, upon all questions thus finally presented for reconsideration.
It is concluded that the cause, except as to the refusal to consider the cross-points, as indicated, was correctly disposed of by the original holding that the evidence did raise an issue of fact over whether the bus-driver was acting within the scope and course of his employment for appellee at the time of its driver’s assault upon the appellant; hence that opinion will be adhered to.
Indeed, these excerpts from the testimony of appellee’s driver himself — when appraised most favorably towards the appellant, as they must be — convincingly negative the only defensive claim declared upon by the appellee: that its driver had turned aside from the course of his employer’s business when he struck the appellant with the money-changer, to wit:
“Well, I got out and went back to ask him his name and license-number, to make my report out of the accident.”
“When I first started talking to him, he was sitting behind the wheel of the automobile. He was driving the car.”
“I just asked him for his name.”
“Q. Well, what led up to your striking him? A. “Well, I told him — he didn’t seem to like it, because I wanted his name and his license number. So I just told him that I had to make out a routine report for the company, so they could check the bus and see if there was any damage to it and replace whatever was broke on the bus.
“I started to walk around to get his license number. He said, ‘You can’t have anything, you * * * So I hit him.
“Q. What did you hit him with? My money-changer.
“Q. Did it knock him down? Yes sir.
“Q. You came back to make inquiries, going through the regular routine of your work, as the Houston Electric Company requires? A. I believe that is required in any accident to get whoever hit you’s name and that sort of thing.”
“Q. Isn’t that a requirement of your company? Yes, sir, that is a requirement of the company.”
“Q. At that time, you were just going to the back of the car to get the license number yourself? A. Yes, sir.”
“Q. And then, when you started to take his license number, he cussed you personally? A. Yes, sir.
“Q. And that is when you hit him? A. Yes, sir.”
In other words, if there was such a fight between the two participants as the appellee has grounded its indicated sole defense upon, it is thus made clear that its driver not only began and precipitated such fight, but accelerated it into a very quick termination in his own favor by a knock-out blow with his employer’s implement, right at the moment he was undertaking to procure the appellant’s car-number, and was meeting opposition from the latter in doing so.
This situation brings the whole cause, on its merits, directly within the rule thus stated in Chicago, etc., v. Carter, Tex.Com.App., 261 S.W. 135, at page 136, col. 2, near bottom, cited in this court’s original opinion: “Where the agent begins a quarrel while acting within the scope of his agency, and immediately follows it up by a violent assault, the master will be liable, as the law under the circumstances will not undertake to say when in the course of the assault he ceased to act as agent and acted upon his own responsibility.”
That same holding, on analogous facts, was likewise made in Gulf, etc. v. Cobb, Tex. Civ.App., 45 S.W.2d 323, at page 326, middle of column 1, writ of error dismissed, as follows: “When the master places his property in the possession of his servant, ‘the right to protect that possession as well as the right to prevent any interference with its immediate use, springs out of the possession and the duty to control and manage it,’ *837and, for any assault made by the servant upon a third person immediately growing out of the exercise of his right to control and manage the property by which the servant uses more force than is necessary, the master is liable for the injuries so inflicted.”
As concerns the cross-points, they are all overruled as having pointed out no reversible error. While they well-nigh challenge the whole submission of the cause to the jury, including the special issues and the definitions given in connection therewith, it is not thought that — under the pleadings and developed facts — there were any such errors involved as were reasonably calculated to cause, and probably did cause the rendition of an improper judgment. Texas Rules of Civil Procedure, rule 434.
This court finds no fault with either of the two most important instructions therein given; that is, those under issue No. 1, as to whether the bus-driver was acting within the scope and course of his employment for appellee at the time he struck appellant, and No. 3, the damage-issue, to wit:
“You are instructed that, as used herein, the term ‘within the scope and course of his employment’ means that the act was done by the employee while said employee was engaged in the service of his employer, about his employer’s business, and in furtherance thereof.’
“1. Such physical pain and mental anguish, if any, as you may find from a preponderance of the evidence that the plaintiff, Guy Felder, has suffered, if any, from the date of the occurrence down to the date of this trial.
“2. The reasonable present cash value to the plaintiff of the loss of his teeth.
“3. Disfigurement, if any.
“Answer by stating the amount, if any, in dollars and cents.”
As this court understands it, these definitions come within the accepted holdings of our courts with reference to the defined subjects, to wit:
(1) On course of employment: Gulf C. & S. F. v. Cobb, Tex.Civ.App., 45 S.W.2d 323, page 327, (9);
(2) On damages: Fidelity v. Branton, Tex.Civ.App., 70 S.W.2d 780, W.E.D.; St. Louis S. W. Ry. Co. v. Highnote, Tex. Civ. App., 84 S.W. 365, 368; Luling Oil & Gas Co. v. Edwards, Tex.Civ.App., 32 S.W.2d 921, 926, W.E.D.
It is further held that the award of $1,000 damages to the appellant has not been shown to have been in anywise excessive; on the contrary, there was no evidence adduced by the appellee, from which such a conclusion could have been justly arrived at; while, on the other hand, the mere statement of what the appellant was shown to have suffered, from the witnesses who detailed it, clearly furnished the jury ample basis for the award it made. S. W. Bell Tel. Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229, at page 234, and cited authorities.
It follows from these conclusions that the appellee’s motion for rehearing should be refused; it will be so ordered.
Motion refused.