Allied Stores of Texas, Inc. v. McClure

• Decision Date: 31 January 1980
• Docket Number: No. 1267,1267
• Parties: ALLIED STORES OF TEXAS, INC., d/b/a Joske's et al., Appellants, v. Winifred McCLURE, Appellee.
• Court: Texas Court of Appeals

Page 165

595 S.W.2d 165

ALLIED STORES OF TEXAS, INC., d/b/a Joske's et al., Appellants, v. Winifred McCLURE, Appellee.

No. 1267.

Court of Civil Appeals of Texas, Tyler.

Jan. 31, 1980.

Rehearing Denied March 14, 1980.

Delno J. Grosenheider, Wilson & Grosenheider, David M. Moore, Austin, for appellants.

Edward Berliner, Colbert & Berliner, Austin, for appellee.

SUMMERS, Chief Justice.

Winifred McClure, appellee, sued Allied Stores of Texas, Inc., d/b/a Joske's, Arvid Sundbeck, Ellen McChesney, Terry Ockletree and Carl Ray Thomas for personal injuries sustained by her as a result of being knocked to the ground by a fleeing shoplifter. The case was tried before a jury. In response to the special issues submitted, the jury found that the shoplifters (Ockletree and Thomas), the security guards (Sundbeck and McChesney), and Joske's were negligent and that such negligence proximately caused the injuries to appellee. Damages of $35,582.00 were found. Only Joske's and the security guards have perfected this appeal.

We reverse and render.

On October 11, 1975, Mrs. McClure and a friend went to Highland Mall in Austin, Texas, to do some shopping and browsing. They arrived at approximately 5:00 o'clock that Saturday afternoon. About the time Mrs. McClure was entering the mall, Terry Ockletree and Carl Ray Thomas were in the process of stealing merchandise from Joske's in Highland Mall, such merchandise consisting of men's knit shirts. They were observed by two security guards employed by Joske's, Arvid Sundbeck and Ellen McChesney. After the theft took place, the two shoplifters left Joske's premises and proceeded into the mall area. The security guards followed, and an attempt to apprehend them peacefully was made by the guards. The attempt proved unsuccessful. One shoplifter immediately ran, while the other pushed out at Arvid Sundbeck, knocking him off balance, and then ran, eventually colliding with appellee, causing the injuries complained of in this suit.

As a result of such collision, Mrs. McClure was knocked to the floor and into a large planter at the foot of one of the escalators in the mall area. Appellee sustained a dislocated shoulder and suffered pain in her neck and down the left side of her body. Her injuries necessitated treatment by a physical therapist, and such treatment has been continued off and on up to the time of trial. Appellee no longer enjoys some activities which she participated in before the accident, namely golf and bridge. She can no longer sit for a long interval of time, tires easily and has trouble sleeping.

From the adverse judgment below, appellants have predicated their appeal upon eleven points of error. Points of error Nos. 1 through 3 raise no evidence and insufficient evidence attacks against Special Issues Nos. 6 and 7. Special Issues Nos. 6 and 7 inquired whether the security guards were negligent in pursuing the shoplifters and whether such negligence was the proximate cause of the occurrence in question. Points of error Nos. 4 through 6 raise no evidence and insufficient evidence attacks against Special Issues Nos. 11, 12 and 13, which inquire whether Allied Stores of Texas, Inc., failed to properly train their security guards, whether such failure to train was negligence, and whether such negligence was a proximate cause of the occurrence in question. Point of error No. 7 contends that the trial court erred in submitting Special Issues Nos. 11, 12 and 13 because such issues are not ultimate issues of fact and are, therefore, evidentiary. Appellants also contend that the trial court erred in rendering judgment against appellants because, as a matter of law, appellants breached no legal duty to appellee (No. 8), in refusing to submit appellants' requested instruction on "heedless and reckless disregard" and appellants' requested Special Issues Nos. 1 and 2 regarding whether or not the security guards' pursuit of the shoplifters was in heedless and reckless disregard of the rights of others (No. 9), in rendering judgment against appellants in the amount of $35,582.00 and refusing to grant appellants' motion for remittitur (No. 10), and finally in unconditionally submitting Special Issue No. 14 because such an unconditional submission amounts to a comment on the weight of the evidence (No. 11).

There was ample testimony regarding the arrest attempt and subsequent pursuit through the mall. The record reveals that Arvid Sundbeck, in the course of apprehending the suspects, identified himself as a security guard from Joske's. One of the shoplifters immediately pushed or shoved Sundbeck, and both suspects "took off running." Since they went in different directions, Ellen McChesney chased one shoplifter, while Arvid Sundbeck chased the other. Lula Hawkins, an eyewitness for appellee Mrs. McClure, testified that the security guard (Sundbeck) in pursuit was only 5 to 7 feet behind the shoplifter at the time of the collision. Yvonne Puig, another eyewitness for appellee, recalled that she heard a scuffle, and when she turned around she saw Mrs. McClure on the floor on her back, sliding headfirst into the planter box. She then saw Arvid Sundbeck catch up with and apprehend the shoplifter by handcuffing him. Ms. Puig stated that both of the men were running, but that Mr. Sundbeck was "right on his (shoplifter's) trail." The appellant Arvid Sundbeck testified that the mall was fairly crowded the day of the accident, and as he had just begun to chase the suspect, he saw him go up in the air as if he was going over the top of someone. Jo Ann Lane, a witness for appellants and an employee of one of the stores in the mall, testified that she heard some racket in the mall area, looked up and saw a man push a lady, who fell down as a result of the push. She then saw this man trip, enabling the security guard to handcuff him. She recalled that she did not see the security guard when the woman fell, but the security guard (Sundbeck) arrived on the scene almost instantaneously. Amelia Montoya, another witness for appellants, testified she saw the shoplifter go through some people, causing a woman to fall down. She further recalled that the guard was fairly close in pursuit at the time of the collision between the woman and the shoplifter.

Appellants' seventh Point of Error alleges that the trial court should not have submitted Special Issues Nos. 11, 12 and 13 for the reason that such issues were not ultimate issues of fact and are, therefore, evidentiary. Appellant duly and timely objected to the submission of these issues on the same ground now urged in this appeal. Special Issues Nos. 11, 12, and 13 read as follows:

"SPECIAL ISSUE NO. 11

Do you find from a preponderance of the evidence that Allied Stores of Texas failed to properly train their employees Sundbeck and McChesney?

Answer 'We do' or 'We do not.'

ANSWER: 'We do.'

If you have answered Special Issue No. 11 with 'We do,' then answer Special Issue No. 12; otherwise, do not answer Special Issue No. 12.

SPECIAL ISSUE NO. 12

Do you find from a preponderance of the evidence that such act was negligent?

Answer 'We do' or 'We do not.'

ANSWER: 'We do.'

If you have answered Special Issue No. 12 with 'We do,' then answer Special Issue No. 13; otherwise, do not answer Special Issue No. 13.

SPECIAL ISSUE NO. 13

Do you find from a preponderance of the evidence that such act was a proximate cause of the occurrence in question?

Answer 'We do' or 'We do not.'

ANSWER: 'We do.' "

An ultimate fact is one essential to the right of action or matter of defense. If an ultimate fact is involved in a case, which is essential to the claim or defense, and is necessary to form the basis of a judgment, it is the duty of the court to submit such issue for determination by the jury. However, it is not necessary to submit a special issue where it does not call for the determination of some ultimate fact necessary to form the basis of the judgment, as where it relates to subordinate facts to be considered in determining ultimate facts, and necessarily embraced in the determination of the ultimate fact issue. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 84 (1940); Rule 279, T.R.C.P. Issues which are submitted to the jury which are not ultimate or controlling issues are characterized as evidentiary issues and may be disregarded as being immaterial. Neuhaus v. Kain, 557 S.W.2d 125, 135 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.); Mills v. Withers, 483 S.W.2d 339, 342 (Tex.Civ.App. Houston (1st Dist.) 1972, no writ); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 506 (Tex.Civ.App. San Antonio 1949, writ ref'd n. r. e.).

The factual questions raised by Special Issues 11, 12, and 13 may have been proper subjects of inquiry in evidence, but the issues, as framed, were not required to be submitted to the jury for determination. They relate only to various phases and different shades of the controlling issues (whether the particular act of pursuing the shoplifters through the mall was negligence and a proximate cause of appellee's injuries) which were submitted by the trial court. The issues complained of inquired into subordinate facts which might be considered as evidentiary matters in determining a controlling issue, namely, whether the pursuit by the security guards was negligence. The controlling issues were submitted by the trial court to the jury in Special Issues Nos. 6 and 7. We therefore sustain appellants' Point of Error No. 7 and accordingly will disregard Special Issues Nos. 11, 12 and 13.

Furthermore, even if we were of the opinion said Special Issues 11, 12 and 13 were not evidentiary and were taken under consideration by this court, they would fall before the same argument that follows concerning Special Issues Nos. 6 and 7; that is, that there is no evidence of proximate cause presented by appellee that "but for" the improper training by Joske's, the collision would not have occurred. It would be...