Alamo Downs v. Briggs

• Decision Date: 12 May 1937
• Docket Number: No. 9997.,9997.
• Parties: ALAMO DOWNS, Inc., et al. v. BRIGGS.
• Court: Texas Court of Appeals

106 S.W.2d 733

ALAMO DOWNS, Inc., et al. v. BRIGGS.

No. 9997.

Court of Civil Appeals of Texas. San Antonio.

May 12, 1937.

Rehearing Denied June 16, 1937.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Fifty-Seventh District, Bexar County; Everett F. Johnson, Judge.

Suit by C. L. Briggs against Alamo Downs, Inc., and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Birkhead, Beckmann, Stanard & Vance and Mueller & Green, all of San Antonio, for appellants.

Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.

SLATTON, Justice.

C. L. Briggs filed this suit against Alamo Downs, Inc., and Raymond R. Russell for damages occasioned by an assault and two false imprisonments, alleged to have occurred at Alamo Downs, during the progress of one of its race meets.

Trial was had to a jury, which returned a verdict on special issues favorable to Briggs and allowed damages: $250 actual, for the assault; $1,000 actual, for the first false imprisonment; and $1,000 exemplary, for the first false imprisonment; and $150 actual, and $100 exemplary, for the second false imprisonment. The trial court rendered judgment on the verdict against Alamo Downs, Inc., and Raymond R. Russell, jointly and severally, for the sum of $2,500.

The appellants bring the case here upon thirty-six propositions of law, claimed as errors committed by the trial court.

Appellee pleaded an unlawful assault and battery and two false imprisonments, alleging that the assault and battery occurred about 3:30 p. m., and shortly thereafter the first false imprisonment occurred and continued until about 6 or 6:15 p. m.; that the second false imprisonment occurred about 6:15 p. m. of the same day. The appellants answered by general denial and specially pleaded that the appellee was disturbing the peace, and that the officers arrested appellee as deputy sheriffs of Bexar county, Tex. The appellants also pleaded that, if there was any assault and battery and any false imprisonment, the same was beyond the scope of authority of the officers and that the same were not authorized by either of the appellants, and such officers acted solely as deputy sheriffs. Appellants also pleaded that the rules of racing prohibit persons from picking up tickets from and off the grounds of Alamo Downs, and that the appellee was discovered picking up tickets; that the officers were instructed to advise all parties that the same was not permitted; and that in carrying out these instructions the appellee became enraged at being so advised by the officers, and became violent, and was in the act of disturbing the peace, and hence the arrest and detention.

Appellants first complain of the failure of the court to define the term "unlawful violence," as used in its definition of assault and battery and assault. It is a sufficient answer to this contention to say that the evidence offered by appellants shows an unlawful assault and battery as a matter of law; therefore it was unnecessary to define the term.

Appellants next complain of the failure of the court to define "expressly authorized by law" in its definition of false imprisonment. We think the evidence shows a false imprisonment as a matter of law. The evidence shows that there was maintained by Alamo Downs, Inc., a room called by the officers a detention room and jail, and police headquarters, where it was the custom to incarcerate persons who were found disturbing the peace, and drunks. The evidence further shows that it was the instructions of the arresting officer to hold the person in custody until the chief officer could be consulted, and for him to determine what should be done with the arrested person. This, in our opinion, is a false imprisonment as a matter of law. Our statutes contemplate that where a person is arrested without a warrant, that he shall be immediately taken before a magistrate. The record in this case shows, without dispute, an utter disregard of this provision of our laws.

Appellants next complain of the definition of false imprisonment, because it does not authorize the jury to consider certain defensive evidence material to that offense. What we have heretofore said is applicable here, with the additional consideration that the appellants pleaded the arrest and detention and sought to justify the same by virtue of the fact that the appellee was committing a breach of the peace. This question was submitted to the jury under an appropriate special issue, with the statutory definition of the offense of disturbing the peace, and answered against the appellants. It seems to be the rule, in actions of assault and assault and battery and false imprisonment, that when an arrest and detention are shown, the burden shifts to the one seeking to justify to show with proof that such conduct was legal. As was said in Cameron Compress Co. v. Kubecka (Tex.Civ.App.) 283 S.W. 285, 286 (writ refused):

"We do not sustain the contention. The doctrine or principle of `respondeat superior' has been recognized in all jurisdictions, and literally means, `Let the principal answer.' 34 Cyc. 617, quoting vol. 3, Bouv. Law Dict. [Rawle's Third Revision], p. 2922. As applied to this case it simply means that if Hause, the employee, while engaged in the work of the master, made an assault upon appellee, his act in making such assault is the act of appellant. The law is founded upon the principle that the master is liable because he has set in motion the agency that produced the wrong. The rule has been held especially applicable to corporations, because they have no hands, and must necessarily perform all their acts through servants. Woods on Master and Servant, 571; Pittsburgh, C. & St. L. Railway Co. v. Kirk, 102 Ind. 399, 1 N.E. 849, 52 Am.Rep. 675; 18 R.L.C. 801; Dillingham v. Russell, 73 Tex. 47, 11 S.W. 139, 3 L.R.A. 634, 15 Am.St.Rep. 753; Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S.W. 737.

"Under these authorities appellee was only required to allege and prove by a preponderance of the evidence that Hause committed the assault on him in the course of his employment, and, aided by the presumption that all assaults are unlawful, he thereby made a prima facie case against appellant. Johnson v. Daily, 136 Mo.App. 534, 118 S.W. 530; Robertson v. Sisk, 115 Ark. 461, 171 S.W. 880; Hardy v. Schirmer, 163 Cal. 272, 124 P. 993; Haverbekken v. Johnson (Tex.Civ.App.) 248 S.W. 102; St. John v. Eastern Ry. Co., 1 Allen (Mass.) 544; Croft v. Smith (Tex.Civ. App.) 51 S.W. 1089."

Apellants next complain of the refusal of the trial court to give their special requested issue No. 3. It is enough to say that under the pleadings of appellants and the evidence the court was justified in the refusal. The elements presented by the requested issue, which were supported by the pleadings and proof of appellants, were included in special issue No. 30, and answered by the jury adversely to appellants. What we have said also overrules appellants' propositions Nos. 5 and 6, which complain of the definition of false imprisonment by the trial court as being on the weight of the evidence.

By their seventh proposition appellants complain of the court's definition of the term "scope of employment." The trial court defined the term, as follows: "You are instructed that as used herein the term `within the scope of his employment,' when used relative to the acts of an agent or employee, means acts done by an agent or employee while such agent or employee is engaged in the service of his employer or while about his employer's business in which he was employed to assist."

We think the assault is shown to have been committed by the officer in the course of his performance of his duties as an employee of Alamo Downs, Inc., by the undisputed evidence. This may be said to be true as to the first false imprisonment, and Alamo Downs, Inc., would be liable for the actual damages sustained by virtue of the assault and first false imprisonment. The second false imprisonment was expressly directed and ordered by Mr. Raymond R. Russell, president of Alamo Downs, Inc. Mr. Russell testified that he knew that the detention room was being maintained by the Alamo Downs, Inc., that the arresting officer and the chief officer, as he was termed, were on the pay roll of Alamo Downs, Inc., and that the room was maintained there for the purpose of locking people therein. The chief officer, Mr. Mussey, testified that his instructions to the officers were, "that when they saw people go around other people, around the mutuels, or otherwise, picking up tickets, to kindly ask them to refrain from that — because lots of people didn't know what they were doing"; that he was held responsible for any irregularities at Alamo Downs, Inc.; and that he had several officers under him.

The arresting officer testified that he was instructed by Mr. Mussey not to allow any "stooping," and to hold the parties for his instructions, when found picking up tickets, or stooping.

Mr. Russell testified that the "stooping" practice was not allowed at the track. The arresting officer further testified that he did not take appellee, Briggs, before a magistrate at any time after his arrest. It follows that unlawful assault and false imprisonment were authorized by the president and chief officer, and included in instructions to the arresting officer here. Under this state of the record, we think that the definition was sufficient.

Appellants, by their ninth, tenth, and eleventh propositions, complain that there was no evidence to support affirmative findings to special issues Nos. 4 and 13. Such issues inquire if Alamo Downs, Inc., through any of its officers or agents, acting within the scope of their employment, advised or procured the assault and false imprisonment. We think what we have already said disposes of that contention adversely to the appellants.

In propositions 12 and 13 appellants complain that special issues Nos. 4 and 13 are...