Moore's, Inc. v. Garcia, 604 S.W.2d 261

Moore's, Inc. v. Garcia

604 S.W.2d 261

Tex. App.

1980

Check Treatment

*1 MOORE’S, INC., Appellant, GARCIA, Appellee.

Pablo S.

No. 1468.

Court of Appeals Texas, Civil

Corpus Christi.

June 1980.

Rehearing Aug. Denied 1980. *2 Moss, Guy H. Law Offices

Abraham Christi, Allison, Corpus appellant. for Christi, Cunningham, Corpus Charles R. appellee. approximately OPINION three hours until he charges released on bond. Later all YOUNG, Justice. dismissed. question jury’s findings whether a except Garcia’s version is similar for the imprisonment false and assault of a cus- alleged striking of the time clock. He testi- tomer in a retail store off-duty police *3 fied that he never struck the clock and that acting officer as a security agent are sup- оnly inquired why being his friend was ported by the evidence is raised in this arrested, rudely and that Officer Bieniek appeal. Moore’s, Inc., below, the defendant told him to leave the store and slammed brings appeal challenge this to the judg- large Upon leaving metal door in his face. ment of the trial court in favor of Pablo store, intercepted the by Garcia was Officer Garcia, the below. We affirm. by Bieniek grabbed who him the arm and A review of pertinent the faсts reflects pushed him. Officer Bieniek informed him Garcia, following. the along Pablo with a destroying that he was under arrest for friend, store, Moore’s, went to a local retail clock, time which was the first time he Inc., purchase to several items for a party. knew damage of the to the clock. After bought Garcia a pie, the two men left brought seeking damages, this suit Upon the store. entering the car outside both actual and for the false exemplary, storе, Garcia’s friend realized that he imprisonment and assault committed with had forgotten pay to candy. some jury, malice. Trial was to a which found security guard store, of Bieniek, Officer Moore’s, Inc., guilty imprisonment of false who was also an off-duty policeman, wit- and assault with malice because of the acts nessed the alleged shoplifting candy of the by $50,- employee. its Actual of and followed the men to their car. At the $25,- exemplary 000.00 and damages of сar, Officer Bieniek appellee’s asked the 000.00 were by jury. Based friend to accompany him back into the store upon verdict, jury the trial court ren- inquire about the shoplifting. judgment dered in favor of Garcia. Both accompanied men Officer Bieniek Moore’s, Inc., appeals. Appellant has back into the store. The progression of brought points error, forward 21 of com- events from point this varies according to plaining essentially of thе lack of evidence the testimony offered each side. Officer support findings. The points of error Bieniek testified that he took Garcia’s will grouped according be to the issues sub- friend into a small room in the back of the jury. mitted to the store began his investigation. The in- vestigation was interrupted by Garcia who imprisonment False has been banged on the door and loudly inquired defined as “. . the direct restraint about what was happening. Officer Bien- one persоn physical liberty of the of another iek allegedly explained to Garcia that his adequate legal justification.” without Kro arrest, friend was under point at which ger Demakes, Co. v. 566 653 Garcia struck a time clock in rage and 1978, Civ.App.-Houston writ [1st Dist.] stormed store, out of the cursing as he left. n.r.e.); Duran, ref’d J. C. Penney Co. v.

Officer Bieniek followed Garcia out of S.W.2d 379 (Tex.Civ.App.-San Antonio the store and arrested him n.r.e.). for destruction writ ref’d Reicheneder v. See private of рroperty, breach peace, Center, of the Skaggs Drug (5th 421 F.2d 307 Cir. and interfering with 1970). a lawful arrest. Sev- The essential elements of false im eral on-duty police officers prisonment 1) soon arrived on are: a willful detention of the scene and took charge appellee, 2) of the person; against the consent of the detained; who was then under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍arrest Bien- Officer party a detention without iek. He jail was handcuffed and taken to authority Garza, of lаw. Sanchez v. booked, where he was photographed and (Tex.Civ.App.-Corpus S.W.2d 258 Christi fingerprinted. Appellee jail 1979, writ). remained in Appellant questions two also

Since there are different inter pretations leading up events scope acting Officer Bieniek was within the arrest, question impris of whether false involves employment. Such contention properly onment did occur was submitted to application principles agency law. the jury in their role as the trier of facts. relating to controlling statement of law Explanatory legal instructions about scope employ performed within the acts imprisonment definition of were also false ment is Restatement embodied issue. The submitted this an 229: conduct must Agency, Law of “The § We affirmatively. swered hold that au general be of the same nature evidence, above, as we have outlined it conduct autho or incidental thorized sufficient factually legally suрport application of judicial this doc rized.” the jury’s answer. opinion by Supreme trine is found in an Appellant challenges also the contention . Court: . the act of servant by appellee that assault was committed. *4 be in furtherance of the master’s busi must A for properly definition assault was sub- accomplishment for of the ob ness or the jury embodying mitted to the the definition employed . ject for which he was along found 22.01 the Penal Code of § personal result insults or animosi not the of special a as to inquiring issue Stores, 297 System ties. v. M Food Smith jury an was assault committed. The found 1957). Pur (Tex.Sup. 112 See also S.W.2d that employee appellant the of the did com- Inc., Prattco, (Tex. vis v. 595 103 S.W.2d mit an during assault the arrest. Fisher v. Carrousel Motor Sup. the It is law of this than an State Hotel, Inc., 1967). (Tex.Sup. 424 627 S.W.2d against peace assault is both an offense the dignity of the well an State as as also policy Public considerations Bus private rights. invasion of Texаs Lines holding corpora a important part in play an Anderson, (Tex.Civ.App.- v. 233 961 S.W.2d employees in for done its tion liable acts 1950, n.r.e.). Galveston writ ref’d For that corporation can of A the course business. assault, reason, the definition of whether in the subject patrons . . its to not trial, a or is the same. Ho criminal civil irresponsible agency an detective hazards of genson Williams, v. 542 S.W.2d 456 the rami danger legal while all of escaping 1976, writ). The Civ.App.-Texarkana no Duрree Pig itself.” v. fications to adverse definition set out the Penal Code Foods, Inc., 542 gly Wiggly Shop Rite 22.01(a)(3) correctly was embodied in the § 882, (Tex.Civ.App.-Corpus S.W.2d 889 given jury instructions which defini 1976, n.r.e.). also writ ref’d See Christi provides tion person that a commits an of Co., Anthony 586 Damron v. C. R. S.W.2d fense when he: 1979, no (Tex.Civ.App.-Amarillo 914 “(3) knowingly intentionally or causes an when writ). Only those instances physical contact with another when he aside, how short turns no matter employee or believe that reasonably knows should of the em time, prosecution the from the the will regard other the contact as of- wholly affair engage in an work to ployer’s provocative.” fensive or employer the to work his own does he cease regard, testimony by In that for liability employer from and relieve the grabbed shows that Officer Bieniek County, his actions. Hein Harris forcibly pushed appellee by the arm and (Tex.Civ.App.-Houston [1st Testimony by him from car. Of away n.r.e.). writ ref’d Dist.] shoving inсi ficer Bieniek contradicts the dent, grabbed but he does admit that that indicates Officer record arresting him. appellee by arm while his acting scope was of Bieniek within of is factual physical Such evidence contact into Depositions introduced employment. support ly legally sufficient that was reflected Officer Bieniek jury’s finding an was commit that assault appellant job whose employee of the ted. of his for guing the arrest friend about security. president to maintain store candy. pri- shoplifting The destruction corporation testified appellant of the that according to Officer property charge, vate shoplift- employed prevent Bieniek was hit- Bieniek, appellee of the was the result approved He testified that he ing. further his fist. ting a clock with time of and all acts done Bieniek. condoned testified that Bieniek himself verbal the trial other witnesses at Testimony by employ- instruсtions he received as to his law as violations of support does not ment were . . protect to “. store As al- alleged by Officer Bieniek. from inside theft internal as well as watch evi- there is no leged peace, breach shoplifting in the store.” The arrest of appellee dence ever threatened that part was a evening dis- acts which undertook violent actually job testimony. according his to his community. tranquility of the turbed the appeаr shouting It does did occur some It is apparent the duties of appellee’s over of the friend the arrest Bieniek in his with the employment Officer threat- shoplifting, but never appellant might involved activities violent Addi- ened or committed acts. require exercising fully carry force out properly instructed tionally, the his duties. those situations which an of the and statement both the definition employee may carry need to force to use peace. сoncerning law breach out the employment, duties of em alleged private destruction About ployer liability greater if not relieved witness, other than Officer property, force is Texas necessary. used than & P. *5 appellee broke Bieniek, that the testified Ry. Co. v. 247 236 Hagenloh, S.W.2d ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it, though by hitting even the time clock 1952); Sup. Enlow, Levine v. 462 S.W.2d 50 that he employee appellant one testified 1970, writ); (Tex.Civ.App.-Waco Kroger no No had a view of entire incident. clear Warren, (Tex.Civ. v. 420 Co. S.W.2d 218 were appellant other who employees 1967, writ). App.-Houston no Dist.] [1st evening that substantiated working on The is uncontroverted that Officer record private proper- allegations of destruction of acting scope Bieniek was within the of his Furthermore, bills were submitted ty. no employment when the incident occurred. It replacement for either the cost repair or is apparent corporation further he did course said that clock. Of Therefore, ratified such acts. there was no not clock. harm the question of regard fact in that which was ample In is summary, there required to jury be submitted to the for appellant’s contention contradict K—Mart v. Judge, determination. No. 4195 justified of viola the arrest was because 148, 515 153 (Tex.Civ.App.-Beau S.W.2d evidence, therefore, tions law. The 1974, dism’d). mont writ acts findings that supports jury’s Dis malice. Gibson were committed with Special questioning issues 511, Cruz, Center, Inc. 562 S.W.2d count v. imрrisonment the false assault 1978, writ ref’d (Tex.Civ.App.-El 513 Paso committed with malice were submitted to n.r.e.). jury, they answered in the af Appellant challenges firmative. these find appeal in is asserted this also Error ings as After factually insufficient. our to sub about the failure of the trial court case, examination of the in this we record mit as follows: requested instructions jury’s findings find no in the error that the Requested Instruction “Defendant’s imprisonment false were com assault # VIII: mitted malice. this follоwing is an offense State: Appellee allegedly was arrested dis-

turbing private and destruction of inten- peace any person It is an offense breach of property. peace suppos- knowingly make unreason- tionally or began edly appellee public place. when the ar- able in a occurred noise Jones, Defendant’s Requested (Tex.Civ. Mitchell v. Instruction 1977, # IX: writ). App.-Corpus Christi The following is an offense of this Perez, Corp. Dover 587 S.W.2d 761 Stаte: (Tex.Civ.App.-Corpus Christi writ It is an offense for any person to will- n.r.e.), applied ref’d recognized we two fully oppose resist an officer in arrest- approaches determining whether dam- ing or attempting to arrest any person excessive; first, ages are looking prece- where the law requires authorizes or second, looking dent from other cases and arrest to be made.” to the facts and of each circumstances case. Further, we practice said that the of com- Concerning instructions, both requested we paring awards of the other cases is unsatis- find no error in the refusal to submit such factory because of the factual differences instructions in that the trial court did sub- the cases and because of the continued ero- mit other instructions concerning the mat- sion of the value dollar. ters requested raised in the instructions. fairly The case was submitted under the Only in those cases where it is еvi requirements of Rule T.R.C.P. dent the award for is passion, prejudice, In that result of or other im we have held that the evidence proper motive or are as to supports special the answers to the so excessive issues shock justice the sense of in the minds of liability submitted to the jury, we now appellate jury’s court will the verdict be reach the issue of damages. v. Du Penney Company overturned. J. C. $50,000.00 for actual ran, supra at 382. damages sustained as a result оf the false imprisonment and assault. The jury also by an appel To be overturned awarded the exempla- court, late exemplary damages must also be ry damages. The appellant attacks the corruption the result passion, prejudice, damage findings on grounds that the evi- Center, or abuse. Gibson Discount Inc. v. dence factually support insufficient Cruz, supra. Exemplary damages should excessive; the findings; that the awards are reasonably aрportioned also be to the actual and that there is an absence of a finding of *6 damages Sons, & Inc. v. sustained. Skillern ratification. Stewart, (Tex.Civ.App.- e.). Fort Worth writ ref’d n. r. When damages The amount of award damages against are awarded exemplary ed to an injured plaintiff largely up is left corporate defendant for the acts of one of to the their determination. The employees, required its it is further that the jury may injuries look all plaintiff, of the corporate ap defendant has ratified or which are not limited to physical those Prattco, Inc., proved of the act. Purvis v. nature but also include the intangible more supra Judge, No. 4195 v. at 231. K-Mart injuries humiliation, shame, fright, and supra at 153. anguish. Duran, J. Penney Company C. supra at 382. In considering all of these There evidence at was considerable injuries, tangible both and intangible, damages appellee trial about jury must attempt to arrive at an award imprison sustained as a result of the false which will fully compensate injured summary, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ment and assault. In there party. The jury is vested with this authori testimony neighbors, long-time ty inadequate because the law is in evaluat friends, members, family employer, ing all the injuries injured sustained wife of the appellee all noticed that party. As this Court has held in a similar appellee very upset over the incident. case, “. . . law has not furnished [t]he Much shame and humiliation were caused us any with fixed standard which to incident, wife, according to the measure damages an award for which re- which altered the character of the sulted from mental anguish, embarrass- and affected his business and familial rela ment, and humiliation for false arrest.” tionships. testified that he re- witnesses who testified to matters only that his self-im- depression, suffered from damages. age impaired, lating and that he became an- to actual gry provocation. without Southall, learning that Garcia upon Mr. arrested, jail.

Thе evidence also indicates that the cor- went to the had been ratify the acts of its porate appellant concerning did Garcia’s response inquiry time,” employee, Appellant’s responded: Officer Bieniek. “at appearance repudiate any not of the night manager did up . “Well, pretty well shook he was Bieniek, as far the record acts of Officer as over the pretty well embarrassed he was reflects, corpora- president and the of the whole situation.” employee had never tion testified testimony concern- extent of his That is the approve that he of. anything done did not actual dam- ing any basis for an award of This evidence of ratification is sufficient to ages. corporation hold the liable for both exem- Hernandez, as to queried when Mr. plary damages. and actual had caused him the incident carefully appel- We have considered all personality, change notice Garcia’s any lant’s of error and we overrule all of points “Yes,” on his observation: answered based them. Well, goI over and ask “A sometimes judgment of the trial court is af- beers, to drink a few him if he wants firmed. not he don’t want to. He don’t-He’s up it. He feel like it. And don’t BISSETT, Justice, concurring and dis- him, guess I it bothers and I asked senting. know, joke if-you him I around holding I concur with the which awarded him, ‘Well, they’re not him and ask $25,000.00 plaintiff exemplary Garcia you up.’ He dоn’t going to lock damages. respectfully I dissent from the anything anymore. He say want to part majority of the opinion by the beer. He go don’t want drink awards it.” just don’t want to talk about actual damages. transcription Nothing appears else probative

The incident which this suit val- gave testimony any rise to which has 20,1976. majori- February damages. occurred ue with to actual respect ty opinion does not set out Garcia, response Sylvia Mrs. evidence. I believe that the evidence relat- following questions, testified: ing to actual should be discussed “Q happened: Did ask him what you in detail. told night, A I asked him that and he The conclusions “considerable evidence me he didn’t want to talk about it. at damages” the trial about the sustained Q you press Did the issue? *7 Garcia; 2) summary, “in there is testi- No, A I didn’t. mony friends, “neighbors, long-time that” Q Why not? members, family employer, and the wife” of upset Garcia “all noticed that I knew he was and was A Because incidеnt”; very upset over depressed. and “much shame and humiliation were caused Q long you was it before How wife, by the according incident to the which able to talk to him? altered the character and finally later he A About three months affected his business and familial relation- happened. me what told ships,” majority opinion, as stated in the are Q appearance What was his then as far based solely testimony of Mr. Otis you tell? When he was could Garcia; Southall, neighbor and friend of finally you? when he told telling you Hernandez, Mr. Danny who was married to A Later? wife; a sister Sylvia of Garcia’s Mrs. Gar- cia, Garcia; Well, Q How plaintiff wife of and the Gar- what was his demeanor? record, they expression? cia. As I read the were the his Did was facial upset testimony seem when he was The remainder his deals with anything telling you three months later? pertain which matters other than those damages. really the award for actual very upset. A He was He didn’t me, really want I pres- tell but testimony in this case from There is no telling sured him into me. Because only neighbor plaintiff’s “employer.” me, know, kept asking you why they and who testified plaintiff friend of was he had been arrested and I didn’t only family Mr. member who Southall. why. say know All I could was for Danny testified was Mr. Hernandez who that’s shoplifting they because what marriage. There plaintiff by was related to had told me.” anyone is no from other than the testimony She further testified that her kinsmen and plаintiff that the incident affected the busi- numerous knew about the incident friends hand, plaintiff; plain- ness of on the other husband, upset and that this fact her employer tiff said that his was most under- raised, subject that when the “he with- was impact upon standing of the of the incident During period everybody.” draws from following February of the three months help wanted to plaintiff and told him: “he response question and in to the if she testimony that the inci- out.” There is no changes had noticed “in Mr. any upon plaintiff’s reputa- any dent had effect time,” during period of replied: this she friends that his tion. Plaintiff admitted “A He’s a lot He don’t talk quieter. him,” beyond “trust that his “character very much like he used to. He’s not “degrad- had not repute,” and that his boss very active like we were before. happened.” “what’s There is ed” him for We used go dancing par- out supports no which the statement tying and we don’t do it more. the incident majority opinion in the just He do it. doesn’t want to appellee.” character of the “altered the He doesn’t want to associate with once in a very Jones, friends often. It’s Mitchell v. go while that we do out.” 1977, writ), Civ.App.-Corpus Christi foregoing all statements constitute the sum plaintiff Jones any bearing that she said which has on the damages for mental as actual damages. issue of actual humiliation re anguish, embarrassment and Garcia, plaintiff, being Mr. told that upon This Court held sulting from false arrest. being jail, he was transported county damаges award that the amount of actual and in answer question you “How did in the amount of ed to Jones was excessive this”, mentally feel about said: $10,500.00. suggested We a remittitur of get very depressed “I because I think I duly was filed money, said sum of got I something arrested for didn’t do plaintiff. very upset. I was I was an- damages, only fac- Concerning actual gry.” case at bar and tual differences in the When he being taken out of the offi- relatively minor. In the Jones case are upon rеaching jail, cer’s car he said that Garcia, case, after his instant criminal,” he felt like a “common and that store, the handcuffs caused his arms and was handcuffed and hands arrest at Moore’s hurt. He further testified: booked, jail photo- taken to where he get depressed “I sometime at work . graphed he remained fingerprinted; *8 just

I’ll I put my work aside when start In three hours. jail approximately thinking about it.” case, was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍arrested plaintiff Jones Jones When asked: Dеpartment in the interior of Globe can you anyway you

“Do know real- Store; arrest) (while paraded was under ever?”; ly shake this stigma at all store; was ob- through the middle of the replied: “patted employees; was by served fellow “No, sir, the store by deputies I down” outside don’t.” presence parties; of third was taken jail; process being was in the of booked and et Trammell MORTENSON Ruth when he was released 15 min- after about al., Appellants, interrogation. utes was nоt the Jones assault; was at victim of an handcuffed not al., Appellees. store, photo- was never or fingerprinted TRAMMELL et Jo Ellen

graphed jail; placed not at was No. 1474. However, scared, confinement. Jones happened; over upset worried and what had Texas, Appeals of Civil Court employees had that his feeling fellow Corpus Christi. him; he, watching did not believe fact, any June 1980. established innocence as wrong doing eyes employees' in the of other 29, 1980. Rehearing Aug. Denied incident; until a week after about by period affected incident for a case, about months. In actu- three each

al damages which were were based hu- anguish, mental embarrassment and plaintiff any

miliation. Neither real had

physical injury by inflicted on him the ar- officer;

resting neither sustained a loss of

earnings earning or capacity; and neither

consulted a doctor or any took medication ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a result of mental emotional or

trauma from the incident..

The facts in this case which led ag-

arrest of the more plaintiff Garcia are

gravated than are the which led to the facts plaintiff

arrest of the Jones in the Jones reason, plus

case. For that the fact value, ever-decreasing dollar is

plaintiff is recovery Garcia entitled to a

substantially money more for actual dam-

ages $4,500.00 than the amount of

was ultimately plaintiff recovered However, having case.

Jones in the Jones light all of the

considered evidence in award,

most favorable to the I be- jury’s award of

lieve that un- actual case, under the in this

reasonable at mo- improper was arrived some passion, prejudice, specula-

tive such as opinion, the excessive my

tion. award is $35,000.00. sug- I the amount would money. in that

gest remittitur amount of