Dupree v. Piggly Wiggly Shop Rite Foods, Inc.

asking sue No. 11 ques- whether the land in conveyed Mecom, trustee,

tion was to John Margaret Lois DUPREE et prior to the time “Little Harvey” and El- vir., Appellants, any permanent mer Mecom made and valu- improvements able thereon. The jury found that it had been conveyed, so FOODS, PIGGLY WIGGLY SHOP RITE there is evidence in the support record to INC., al., Appellees. et finding. this No. 1061. finding A the land conveyed permanent before and valuable improve- Appeals Texas, Court of Civil is, effect, ments were made finding Corpus Christi. improvements no such were made be- Aug. 1976. 2, 1952, January fore when the land was Mecom, trustee; conveyed and, to John this Opinion Rehearing on Motion for Oct. so, being defendants are not entitled to 14, 1976. anything recover for done prior them Rehearing Denied Nov. record, that date. then, Under defendants only could recover perma- improvements and valuable

nent made dur-

ing period the less than two months’ be- 2, 1952, January

tween and the end of Feb-

ruary 1952. is, however,

There no evidence in the any permanent

record to show that improvements

valuable were made during go

this time. In order to to the jury on issues,

these defendants had the burden of

pleading proving the extent to which

good improvements, faith if any, en

hanced the value of the question. land in

Sharp Stacy, 525 S.W.2d 723-724

(Tex.Civ.App. 1975), affirmed — Eastland Tex., (1976); S.W.2d Herndon v.

Reed, 82 Tex. 18 S.W. (1891). Un

der this record the defendants failed to

sustain their burden of proving the making permanent improvements valuable

during the crucial time period; and, this so,

being any error of the trial court

conditionally submitting Special Issues Nos.

7, 8, 9, and 10 was harmless error. is, of the trial court there-

fore, affirmed.

AFFIRMED.

STEPHENSON, J., not participating. Powell, Funderburk,

William R. Weldon Funderburk, Powell, Gibson, & Law Office Parks, Burns, Houston, of Fred Richard appellees.

OPINION NYE, Chief Justice.

Plaintiffs, Margaret Dupree husband, Dupree, Jr., brought Charles suit against Security Systems, Piggly Wiggly Denco Foods, Inc., Rite Shop R. B. Denson and I. Inc., Service, Security B. I. for impris- false prosecution. onment and malicious was jury ease tried before a which answer- special ed issues favorable to Mrs. Dupree concerning false imprisonment, but found Systems that Denco Security on the occa- in acting sion as an indepen- Piggly Wiggly. dent contractor for Based findings, trial on such court denied .any recovery against plaintiffs Wig- Piggly Dupree Mrs. gly. timely perfected has her to this appeal Court. plaintiff, Dupree a Margaret woman, years age

married of and mother children. time of four .At the of the inci- question, Dupree very dent in Mrs. in both active school and church activities never, and had before occasion in ques- tion, charged been awith criminal act. Defendant, Security Systems, ais private investigation company who, at question, exclusively time worked Wiggly Shop Inc. The security guards participated two who in the imprisonment Dupree Mrs. false of Harris, Bo J. Eddie Wilson and both employees defendant, being of Denco. The Wiggly, corporation doing is a busi- Texas, in the in the ness State retail grocery Piggy Wiggly business. had a con- whereby with Denco Denco was to tract external and internal serv- provide store manager for its stores. The ices Piggy Wiggly store at the time the made the basis incident lawsuit oc- curred, Jerry was Mr. Michalik. Werner, Rusk, John C. Werner Hous- Dupree during & testified Mrs. ton, appellants. on the afternoon of October that Everything store. was then taken out of Piggy p. m. she entered the at about 2:30 store, Dupree and billfold. testi- purse located on Cavalcade her Mrs. Street Texas, gave guards Houston, buy- that she one of the purpose fied receipt day received earlier groceries she and other non-food sales ing some showing she reflects she had those items was accused The evidence items. paid for. One of shoplifting store for had been frequent a customer in this been Mrs, gave Dupree guards Dupree testified that admitted past year. Mrs. covering store, cup- receipt ques- sales purchased she some him the in the while salami, items, toy but he testified that it did cakes, a small tioned package beads, rocket, pairs candy correspond prices bar and with the of those items two Dupree He panties. shoplifting. Mrs. was checked accused said pair she was Feak, receipt gave one of the store’s he the sales back to Mrs. out Thelma receipt for a sales Dupree. She received checkers. then left the store.

the above items and stayed in Dupree she Mrs. testified that home, arriving Upon Dupree approximately Mrs. noticed the storeroom an hour for daughter of milk. forty-five she was out Her and minutes and was not allowed that type that the of salami her nor to use the complained to leave was she allowed purchased type repeatedly was a which denied that she telephone. had she She mother Dupree any it without first not like. Mrs. then decided taken merchandise did had necessary for her Dupree to return to the for it. Mrs. reiterated paying would try purchased the exchange the milk and the that she had guards store for the requested entering day for another kind. same and Upon the earlier that salami items store, the checker day, security guards the second time that Mrs. Du- to talk with shopping Feak) story with her could be pree large bag (Thelma carried so that her guards to do so. which she stated contained those items she The two refused verified. al- purchased day. Although earlier in the of the merchandise had value legedly only approximate of the stolen was Dupree testified Mrs. that she went back $2.12, guards security decided value exchange pack- to the meat counter charges shoplifting for to file criminal salami, no age type but could find other her. The evidence showed that the against by then toy of salami. She went sec- Miehalik, manager, Mr. was in the store toy tion to look at the rocket and beads to security with the two storeroom back if find some see she could that were better Dupree approximately Mrs. half guards and than the packaged previously ones she had that she was back there. the time purchased, but found them to be the same. up (bread, guards police some called the de- picked She then other items One chicken, beer, cream) requested police milk ice that officers partment root through pick up. the check her Two Houston uni- proceeded out stand at sent to paid subsequently she for them. officers arrived police time formed out of the store and took her to and led her store, Dupree left After Mrs. two Dupree the Houston Police Mrs. Station. her, they told her approached that men fingerprinted, photographed, booked police and that she was under were the jail. stayed placed jail and then She were later Those two individuals arrest. evening that when she was final- until later Wilson, Norris and Bo identified as J. 0. criminal com- ly on bond. The released security agents Security Systems. by security her plaint filed Although conflicting, ap- evidence is it subsequently on Feb- guards was dismissed by was told the two pears Dupree that Mrs. ruary they arresting security guards that Dupree Dupree was then Mrs. initiated shoplifting. Mrs. June her On defendant, Wig- by guards the store the two The into this lawsuit. taken back Foods, Inc., gly Shop in the rear of the answered storeroom and back contending lawsuit raised appellees concerning the incident com- plained proximately jury’s findings of was Mrs. Dupree caused that: did not (Denco) acts party shoplifting; of a third over commit the offense whom it that she falsely imprisoned; had or to no control and Denco was not an amount of damages. agent, employee primary Piggly Wig- appeal servant or is whether gly- under these facts and circum- stances, Piggly Wiggly is responsible for The trial of commenced the cause on Jan- the acts of its employees. Denco and 13, 1975, uary jury. and was tried before a appellant contends special the trial In answer to certain issues sub- failing erred in to enter mitted, jury found that: Mrs. Dupree her on the verdict the defendant- offense did not commit the of shoplifting; Piggly Wiggly a “non-delegable duty” Dupree falsely imprisoned; that Mrs. Dupree place to afford Mrs. a safe in which (guards) partici- that Norris and Wilson shop, attached to pated imprisonment in the false of Mrs. Wiggly as a matter of law duty when the (store Dupree; manager) that Michalik did was breached the two guards participate imprisonment not in the false acting who were behalf Piggly Wig- Dupree; guards Mrs. Norris and Wil- gly- participated filing son in the of the criminal complaint Dupree; against Mrs. that Mi- Appellee, Piggly Wiggly, contends that (store did manager) participate chalik in where an employer (Piggly Wiggly) con- filing complaint; such Norris agency (Denco) tracts with an private (guards) probable and Wilson did not have service, police security or in order to be Dupree cause to believe Mrs. had committed personnel liable for the acts of supplied, it offense; a criminal that Norris and Wilson dependent upon a factual determination (guards) acting as employees employment of the nature of the relation- Piggly Wiggly question; on the occasion in employer ship (Piggly between the Wiggly) acting that Denco as an independent (Denco) agency and the supplying per- contractor on the occasion in question; and the sonnel nature of the tort commit- necessary reasonable medical and Appellee says in effect ted. that since the expense legal Dupree incurred Mrs. jury found that independent Denco an $650.00; $25,000.00 the sum of would contractor, Piggly Wiggly is not liable re- reasonably compensate Dupree Mrs. for the gardless security guards of what did. sustained; damages she found no ex- question Piggly Wig- is whether or not should emplary damages be assessed gly is liable as a matter law for the against Piggly Wiggly. Denco’s employees tortious conduct of or agents under the facts. plaintiff then moved for defendant, regarding Piggly Wiggly Shop types There are two of relation Foods, Inc., contending that by reason ships easily recognized in Texas that could and as jury’s answers a matter of Wiggly Piggly exist between and Denco law, judgment entered liability which would cause attach Piggly Wiggly for the amount of actual Piggly Wiggly tortious Den- for the acts of $25,650.00. damages of The trial court en- agent employee. co’s One is that of Judgment against tered a Default Principal- the other is Master-Servant and $50,650.00 Security Systems for the sum of Agent. principal A master or is liable to $25,000.00 (the damages plus actual exem- falsely imprisoned one the acts of an damages), adjudged plary but agent acting within employee scope anything should not recover from defend- If employment. the act of of his the em Piggly Shop Rite Wiggly ant Inc. agent scope is done within the ployee or forward Dupree brings points employee agent Mrs. five authority his as an appeal. complaint acting error on has employ- No been while furtherance

887 relationship will not relieve business, such employ then the principal’s er’s Piggly Wig- Wiggly liability from damages for the principal is liable er or “non-delegable” duty to afford a had Barker, gly imprisonment. Rucker v. false See shop. place safe which to Dupree Mrs. 280, (Tex.Sup.1917); 192 528 Tex. S.W. 108 consequence, liability attached as aAs Stores, Inc., System Foods 156 v. M Smith duty when such of law was breached matter (Tex.Sup.1957); 112 297 S.W.2d Tex. security guards acts of who were by the Anderson, v. 155 556 Bros. Co. S.W. Perkins acting behalf from the on ref’d); (Tex.Civ.App. writ — Dallas outset. Guffey, 102 Magnolia Petroleum Co. v. (Tex.Comm’n opinion App.1937, .2d 408 S.W which has no Texas case We have found Downs, Briggs, adopted); Alamo Inc. v. 106 it of whether before the exact (Tex.Civ.App. Antonio S.W.2d 733 by a business estab- “duty” owed or not the — San Emmons, dism’d); v. Clement writ seeking protect property its lishment (Tex.Civ.App. 610 170 S.W.2d “non-delegable” or “no- shoplifters is — Waco m.); w. o. American Insurance writ ref’d where a nassignable” under circumstances Smith, (Tex. v. 439 418 Association S.W.2d attempts to insulate itself from store owner Civ.App. writ); no Skil to an innocent victim of responsibility such — Texarkana Sons, Stewart, imprisonment by & Inc. 379 S.W.2d 687 lern arrest or false a false independent (Tex.Civ.App. guard Worth writ ref’d of an contractor — Fort Warren, e.); Kroger purpose. Company employed n. 420 such r. (Tex.Civ.App. 218 S.W .2d [1st — Houston law of the absence of Texas case In view 1967, writ); no 25 Annot. Tex.Jur.2d Dist.] subject, look to the numerous we this 28; Imprisonment False A.L.R.2d 15 § relating to the cases out-of-state (1970); (1963); A.L.R.3rd 1332 § security guards acts of who employer for 575; Servant 1A Master and §§ C.J.S. 561 — independent contrac- employees of an are 254-261; 35 False Agency C.J.S. C.J.S. §§ in 38 Many of such cases can found tor. 39-40a. See also Re Imprisonment §§ of5 1332. Under Section A.L.R.3rd Agency 2nd statement § duty of hir- “non-delegable entitled article prevalent to er”, exceptions there are two cases, of the' the rule aforesaid Under em- principal, that an general overall liability attach to order cause independent an contractor is of ployer the tortious acts of the two Wiggly for by negligent acts committed for the liable upon plain- guards, would be incumbent a it employees. or his contractor such 1) relationship that: tiff establish Piggly Wiggly and the two securi- between exception, generally it one is Under ty was that of either master-servant guards included), (Texas that where recognized, 2) that the servant or or principal-agent; “inherently performed is to be the work actually participated or agent caused therewith dangerous”, duties commensurate restraint; 3) he that acted with- illegal independent con delegated to an cannot scope employment authority in the of delegator of so as to relieve tractor express; 4) that the act implied either Co., v. Pipe Line Inc. See liability. Sun principal. the master or In ratified (Tex.Civ.App. 789 Kirkpatrick, 514 S.W.2d bar, jury found the two case at 1974, e.); Cage ref’d n. r. writ —Beaumont acting employ- were not guards (Tex.Civ.App.— Creed, .2d 78 308 S.W v. of employees of but ees v. Mer 1957, writ); B. W. no Olson Waco acting as an that Denco was Denco and Inc., (Tex.Civ.App. chandise, 737 388 S.W.2d independent contractor. Allen, writ.); 1965, Gragg v. no —Austin 1972, brings (Tex.Civ.App. main conten- us to This 452 481 S.W.2d — Waco prob- dism’d); & Elevator Co. presents a more difficult Cameron Mill which tion writ Anderson, 156, (Tex. 282 is, though jury found 98 Tex. 81 S.W. even lem. That v. contractor, Indepen also 30 Tex.Jur.2d independent Sup.1904). an See Denco was 888 28, 516; p. Piggly Wiggly’s property

dent Contractors from shoplifters 41 Am.Jur.2d § Independent 41, 805; p. inherently Contractors 38 § intrinsically dangerous. 5(b); A.L.R.3rd 1332 prevail Restatement 2nd upon theory, § If 427. (inherently dangerous Torts work), § have it would upon incumbent her request special been aspect of question The first Co., Pipe thereon. Sun Line Inc. v. issues is, presented guarding whether task of Kirkpatrick, (Tex.Civ.App. 514 S.W.2d 789 possible property shoplifters by one’s from e.). writ —Beaumont ref’d n. r. Glens security guards inherently such an is of Peters, Falls Insurance Co. v. 386 S.W.2d character, dangerous that such work consti (Tex.Sup.1965); Rule 529 dangerous non-delegable duty tutes of the This she do. did not owner. The theory upon liability which this exception The other is that because person is based is that a who engages “personal to the character” duties owed contractor to do work of an inherently dan public adopting protect one measures to character, gerous subject duty, remains to a enter property, operators his owners and absolute, (an non-delegable duty) to see cannot, securing special prises personnel performed it is with degree independent through an contractor for the appropriate care is to the circum purposes protecting property, im obtain 41 Independent stances. Am.Jur.2d Con munity for at least inten tractors, Liability of the employer § protecting agency tional torts or its depends upon knowledge his antecedent Adams v. F. W. employees. See Woolworth danger inherent the work or in Co., (N.Y.C. 257 776 144 Misc. N.Y.S. finding prudent (or that a reasonable man Inc., Sup.Ct.1932); Fay, Hendricks Leslie corporation) in the exercise of due (Sup.Ct.1968); 362 273 N.C. 159 S.E.2d diligence, have known of such dangerous Szymanski v. Atlantic Tea Great & Pacific 2nd work. See Restatement Torts 427 § (C.A. Co., App. 79 Ohio N.E.2d 205 type and 427A. The what work Co., 1947); Zentko v. G. M. McKelvey inherently dangerous considered is so as to (C.A.1948); N.E.2d 265 Halliburton-Abbott impose liability upon employer, is not Hodge, 172 Okl. Co. 44 P.2d always readily soluble. It usually is de (Sup.Ct.1935); Webbier v. Thoroughbred pendent particular on the facts of each Bureau, Inc., Racing Protective 254 A.2d instance, For it has been case.1 held that (R.I.Sup.Ct.1969); Malvo v. J. Pen C. protection property of one’s with fire Inc., ney Company, (Alaska 512 P.2d 575 not, itself, does arms in and constitute an Sup.Ct.1973). an in imprisonment False inherently dangerous activity. type This tentional tort. instances, duty, delegated can in some to Co., supra, v. F. W. In Adams Woolworth contractor, independent thereby reliev case, leading plaintiff, the the a customer ing security agency the hirer of a from store, damages the defendant’s recovered ordinary for acts of negligence The for false arrest. defendant contended by agency’s personnel. committed the employ- was caused plaintiff’s by the arrest v. 18925 Collins Avenue Corp., Brien Lowenthol, (an con- independent ees of one (Fla.D.C.App.1970). So.2d See also 38 the tractor), provide who contracted to 5(b). The A.L.R.3rd record before us § reject- defendant detective service. In with out readily point does not the inherent dan contention, the court ing said: security Therefore, of the work. gers un the places der state of the facts in this case we A owner who a “. . . store agency premises hold as a matter of law that on his for the cannot detective guards var- security protecting property by of the his protecting purpose work of inherently dangerous inherently dangerous, 1. For held not a list of work see 57 C.J.S. 590, pp. 362-363. Master-Servant §

«89 he means, arrest, principle that including not been founded who ious on responsibility advantage from to an inno- to from an act expects immune derive him, a arrest cent victim of false made is done another for must agency, independent even as an detective injury any for intentional which a answer . . . customers of Wool- contractor may sustain from it. We be- party third Company are invited into the store worth holding contrary to the immu- lieve that merchandise, profit to its for the buy corporation responsibil- from the nizes the Company. Can it be said that Woolworth law, thereby imposed by permitting it ities Company can all Woolworth disclaim subject patrons its hazards of an them from duty protecting the tortious agency escap- while irresponsible detective brought by acts of it into detectives its legal of the ing danger all ramifications very premises purpose, own to itself. adverse others, making among arrest of its us show that undisputed The facts before is not This the case of a customers? Security Systems employed by doing negligently. his work contractor exclusively and worked negligence is the sole Where basis of the Shop providing both exter- Inc. liability, respondeat supe- doctrine security for the various nal internal inapplicable been held to inde- rior has Houston, Piggly Wiggly stores Texas. pendent Negligence contracts. does in one of security problem When arose the tort false arrest. The enter into stores, Denco, contact Piggly Wiggly would itself, justified act if not under statute specific problem, inform them tortious, irrespective , negli- . security request guards Denco send out gence. Lowenthol, brought onto the guards particular When the to the store. premises and also to to watch arrest. Im- at particular arrived store to which they munity per- vicarious liability would assigned, they report in to were would any keeper subject mit store cus- his manager (which store in this case was Mi- irresponsible the hazards of an tomers to they chalik) making him aware that were agency peril detective without to himself. premises. time the on the At this store all the He would obtain benefit of the manager guards either brief the would punishment surveillance and shoplift- problem as he believed existed ers; subject would be he none of the guards to the a customer who he out sus- penalties unjustified ar- unlawful guards pected shoplifting. The would law-abiding oppor- rest of citizens. The proceed keep- to walk around the store then injustice gross tunities for afforded suspected shoplifter under surveil- ing per- are too such doctrine manifest allegedly illegal they lance until saw incorporation jurispru- into the mit its occur, at which time an arrest conduct state, compelling of our without dence ensue. would reason.” Wiggly provided It is clear that weight of the above authorities guards place in which these may seems not employ to be one thereby intentionally expos- to work special agency contract with a or detective possible ing its to the tortious customers irregularities firm to ferret out the of its guards. jury made conduct sev- employees escape customers then findings, none which were com- eral prosecution malicious liability for the by Piggly Wiggly. or attacked ground plained the agency false on that the arrest findings Dupree are that Those Mrs. did not employees independent its are and or con- the shoplifting; offense of public she commit policy tractors. Consideration re- falsely imprisoned; that Norris and necessity holding for quires responsi- the was imprison- participated in the false by liable for the acts Wilson person ble done others Dupree prosecution At the time was arrest- to its in the its busi- Mrs. patrons ment. adopting policy Piggly Wiggly taken into the cases have ed and back ness. Such store, manager, (Michalik) damages). 7, 1975, fully May (12 the was days later) On and, fact, in plaintiff of the situation re- designated aware the filed an instrument back storeroom at half mained the least Judgment “Plaintiff’s Renewal Motion for Dupree Alternative, time Mrs. was there. the retained And in the Motion for New undisputed Wiggly did not It is Trial”. It is here that: noted A motion for any investigate proprie- make effort the required, trial when new shall be filed with- through or detention ty (10) of the arrest its days judgment ten after the or order management through complained other employee. of is 329b(l) rendered. Rule T.R.C.P. are certain duties that an

There owner of cannot absolve itself from liability 27, a store on May 1975, Thereafter plaintiff delegating performance the by thereof to “Application judgment filed her for nunc independent contractor. Such non-dele- pro requesting tunc” trial the add hold store gable duty operator $50,000.00 cases the judgment, damages the recov- negligence liable the of the contractor Security Systems in the ered although he himself has done everything being damages amount of This $650.00. reasonably required that could him. legal and medical expenses by incurred plaintiff inadvertently which was omitted that Piggly by We hold se Wiggly original judgment. from The trial curing through guise an independent judgment pro court then entered a nunc contractor, security guards protect its and included damages tunc as $650.00 means, by property various cannot obtain (as by plaintiff recoverable found immunity imprison from for false jury), Security Systems from Denco on that ment which such store owner would 27, 1975). (May date to if equally entitled such owner itself di contends, appel- since paid rectly agents selected and express (filed motion for new May 7, lant’s trial ly retaining power of control re 1975) (10) days was not filed ten within When a store moval. owner undertakes original date of the judgment (April personal these functions its duties are 25, 1975), complained the errors of in the non-assignable and the company where ar for new trial cannot be motion considered ranges accepts service, for and it will Citing this Court. Rule 5 T.R.C.P. permitted to say not be that the relation ship respon of master servant as far as Thirty days origi from the date the concerned, sibility is Negli does not exist. 25, judgment May was fell nal entered enter gence does not into tort of false 1975, Sunday. day, awas The next The imprisonment. act itself is tortious Monday, May legal holiday was a negligence. irrespective appellant’s (Memorial Day). day, The next not a Sat error second is sustained. urday Sunday legal holiday, or a was appellee, Piggly Wiggly Shop Rite May pro the date the nunc tunc Foods, Inc., by cross-point, Therefore, judgment contends entered. trial was jurisdiction of this thirty Court has not been day court’s action within as appellant’s points invoked to certain of period which the trial court has absolute error, (Number involved), judgment two above not over its make correc control judicial motion for new trial tions for clerical as well errors. preserve 329b, was not filed in time to these Rules points. act on trial court could not Since April Sunday day legal

On the trial court entered and the next holi- original whereby jurisdiction, (under rule its the court day, Therefore, day. recover default from 4) following Deneo Se- to act on the $50,000.00. curity Systems, timely the sum of appellant’s motion new ($25,000.00 $25,000.00 filed, punitive dating entry judg- actual and it from the unincorporated associ- “Any partnership, Rule 306c “Pre- pro tunc. See nunc ment corporation, ation, individual private and or Motions for New Trial” maturely filed under an name 329b, Appellee’s doing cross- business assumed see Rule partnership, in its sued or be may sue is overruled. point pur- the name for common assumed obtained default Although Plaintiff against a sub- enforcing it pose of Security Systems Denco judgment by any par- on motion right, but stantive appellee, as appear not company does the true own motion or on the court’s ty appeal besides only appellee on other the may be substituted.” name appel- The is R. B. Denson. complains of error fifth lant in her is no petition, there plaintiff’s trial In R. dismissing court in of the trial the action capacity Denson was to what indication as subject lawsuit. The B. Denson from sued, pleadings allege that nor do the being plaintiff’s cause of action record shows agent, principal of is an officer or Denson June October On arose At the time the Security Systems. Denco original petition filed her plaintiff for in- Denson’s motion granted court trial Security Systems as one naming Denco verdict, pleadings there was no structed On October defendants. showing that before the court evidence individually named R. B. Denson plaintiff Security Systems name was a trade Denco the first time in her defendant as a Denson. At the name R. B. or assumed petition. original In said amended third attorney testimony, appellant’s end of be- relationship no or connection pleading, cer- attempted to introduce into evidence Denco Security Systems Denson and tween interrogatories to Denco propounded tain fact, in fourth alleged. plaintiff’s In showing that Denco Secur- Systems Security petition on which she went amended trade name assumed was the ity Systems Security trial, alleges that Denco plaintiff However, the trial R. B. Denson. name of doing business corporation is a Systems interrogatories “that stated court engaged of Texas the State jury read to the should not be that Den- appellant admits business. The they because accepted into evidence not be individually party not son was made any that will are not relevant years four after her the suit until well over jury”, to which neither come before Denson answered of action occurred. cause interrogatories do objected. These party plaintiff’s suit was barred alleging that record before us. appear in the year two and four Statute of Limi- both the 5526, 5529, Tex.Rev.Civ. Articles tations. has failed both Since Stat.Ann. proof, to show the relation pleading Security Systems R. B. between 13, 1975), (January of trial On the date in di Denson, court was correct the trial jury, Denson empaneling prior to the Appellant’s for Denson. recting a verdict verdict con- a motion for instructed filed is overruled. error point of fifth tending plaintiff’s cause of action concerned, was com- he was insofar disposition hereinafter Because plain- years four after more than menced made, necessary for us consider is not it trial court action arose. The cause of tiff’s Jury of error. The points other ver- motion for instructed Denson’s granted damaged in had been Plaintiff found that him the suit. dismissed dict and $25,650.00. damages Those the amount against Piggly Wiggly rendered Denson has are here contends that appellant Foods, judgment Inc. Shop party to the lawsuit always been as to accordingly reversed undisputed that Denco testimony Wiggly Shop Rite appellee the trade or assumed Security Systems was is here rendered for Denson, of R. B. an individu- Inc. name business Margaret Dupree and husband 28, T.R.C.P., authority. as its Plaintiffs al, Rule citing $25,- Dupree, Jr. in the amount Charles says: The Rule 892 judgment

650.00with interest from the error complained date can be determined. judgment Compare appellee Fambrough and for costs. to Wagley, 140 Tex. R. is 169 (Tex.Sup.1943). B. Denson affirmed. S.W.2d 478 We appellant’s that the hold motion judg REVERSED AND RENDERED IN disregard ment sufficient to certain PART AND AFFIRMED IN PART. findings jury and for the trial court to have judgment rendered for the OPINION ON against Piggly MOTION FOR In Wiggly. Myers v. Cren shaw, 134 (Tex.

REHEARING Tex. 137 S.W.2d 7 App.1940, opinion adopted), Comm’n Appellee Piggly Wiggly Shop Rite said that court the substance of a motion is assignments Inc. in its fourth fifth disregarded not to because of imper an rehearing motion for complains error in its fection form. erred in considering appel- that this Court (3) There are necessary three ele point of error rendering lant’s second which must ments be included in a motion alleged judgment thereon because said er- disregard findings. to 1) The motion must: trial court was not properly ror designate finding findings and/or perfected for consideration this Court. is upon disregard; 2) the court called to specify why finding the reason or find appellant entitled Before is to 3) ings disregarded; should contain a aby Appeals, rendition Court of he Civil request judgment be entered upon the present must first the error to the trial remaining findings specific after find form court in the of a motion proper to been ings disregarded. have set aside or allow the trial court to correct its error. In Parks, 128 Tex. Hines S.W.2d970 order preserve right to to rendition of (Tex.Comm’nApp. 1936, opinion adopted); judgment, proper predicate — must be Employers Casualty Mutual Company v. prejudgment made one more motions Poorman, 428 (Tex.Civ.App.— S.W.2d 698 objections. disregard A motion to a jury e.). Antonio ref’d writ n. r. San Rule finding under is way T.R.C.P. one point preserve such of error as we have test, light In of this we examined Calvert, before us. No See Evidence and renewed appellant’s judgment motions for Evidence, (1900). Insufficient T.L.R. were they and determined sufficient to the trial direct court’s attention and our It Wiggly’s contention of, to the complained e., attention matter i. appellant’s judg that neither motion for disregard findings. certain jury The re ment motion judgment or renewed are judgment clearly motion for newed sets out provide necessary sufficient predi findings the reason the be disregard judgment. objec cate for rendition appellant that the ed. The contended find procedure tive of the rules of civil is to against were as it ings the law concerned fair, just, equitable impartial obtain a request case. The motion contained adjudication rights litigants under judgment be entered fa principles established substantive law. remaining findings. vor on the based end; given Therefore, To this the rules shall be the second and third elements of 1, Objective liberal construction. Rule clearly present. The only the motion Rules, question concerns first real element designate motion the findings that the to be judgment

If the motion for Appellant’s disregarded. renewed motion call the sufficient to trial attention court’s requests judgment court to to the raised and was sufficient to grant attention direct the court’s to the matter jury Special on answers Issue based of, appellate 1, 2, 3, can

complained 13, 14, effect, rule and 15. In Numbers error disregard findings. where the substance of all the rest in situation similar to fact This is al., Appellants, Crenshaw, supra. Myers In the et v.

Myers J. M. NAFTALIS in case, question asked court the motion v. except any special disregard all issues al., Appellees. E. RANKIN et Robert Myers case appellant No. 10. insuf- contending that this motion was 4938. No. (now 301) 2211 under Art. Rule ficient Texas, Appeals of Civil Court Special Number aside Issue court set Eastland. not specifically said issue was 9 be set aside in the motion. designated to 16, Sept. 1976. rejected the conten- appellant’s The court 10, Rehearing Denied Nov. held that the motion was sufficient tion and all to set aside issues the trial given same except No. 10. This effect appellant’s renewed motion for

by us By asking at

judgment the case bar. Special render based on

court to 1, 2, 3, appellant, 14 and

Issues effectively, unartfully still re- but

rather disregard the trial court

quested

remaining issues. error that failing to enter court erred

the trial appellant on the verdict

judgment for based law, properly perfect a matter of

as such, with the point of error

ed point and

argument appel- under the argument, empowered to such

lee’s answer judgment which to render that

this Court Rule court should have entered. v. Martin Commercial Stan Company, Marine Insurance Fire and

dard (Tex.Sup.1974); 799 Perez

505 S.W.2d Bank, 512 796 S.W.2d

Los Fresnos State 1974, no

(Tex.Civ.App. Corpus Christi — Co., writ); v. Fort Worth Transit Yanowski (Tex.Civ.App. Worth

204 S.W.2d — Fort n.r.e.); Wegen ref’d Lehrer writ hoft, (Tex.Civ.App 203 S.W.2d . —Gal n.r.e.); writ ref’d Comer v.

veston

Brown, (Tex.Comm’n App.— S.W. adopted). jdgmt. ap- reconsidered all of carefully

haveWe motion for points rehearing. Its

pellee’s

rehearing is OVERRULED.

Case Details

Case Name: Dupree v. Piggly Wiggly Shop Rite Foods, Inc.

Court Name: Court of Appeals of Texas

Date Published: Oct 14, 1976

Citation: 542 S.W.2d 882

Docket Number: 1061

Court Abbreviation: Tex. App.