Arrington's Estate v. Fields

• Decision Date: 15 February 1979
• Docket Number: No. 1131,1131
• Citation: 578 S.W.2d 173
• Parties: The ESTATE of Earl ARRINGTON et al., Appellants, v. Eugene Devan FIELDS et al., Appellees.
• Court: Texas Court of Appeals

Page 173

578 S.W.2d 173

The ESTATE of Earl ARRINGTON et al., Appellants, v. Eugene Devan FIELDS et al., Appellees.

No. 1131.

Court of Civil Appeals of Texas, Tyler.

Feb. 15, 1979.

Rehearing Denied March 15, 1979.

John A. Berke, Jr., Berke & Associates, Laron D. Robinson, Leebron & Robinson, Houston, for appellants.

Joseph D. Jamail, Nat B. King, S. Gus Kolius, Jamail & Kolius, Frank G. Jones, Fulbright & Jaworski, Ralph Shepherd, Houston, for appellees.

SUMMERS, Chief Justice.

This is a case in which suit was filed seeking recovery for injuries and damages arising from an incident in which Eugene Devan Fields, plaintiff below, was shot during an altercation with Earl Arrington, a security guard employed by Executive Security Systems of America, Inc., both defendants below. At the time in question, Earl Arrington, hereinafter "Arrington," was on duty as a security guard on the premises of a convenience store which was owned and operated by Stop N'Go Markets of Texas, Inc., hereinafter "Stop N'Go." Prior to trial, plaintiff took a nonsuit as to Stop N'Go, but Stop N'Go remained in the lawsuit as a cross-defendant.

The primary theory of recovery relied upon by the plaintiff was based upon a cause of action of negligent hiring. Plaintiff alleged that Arrington willfully, intentionally, and without provocation assaulted and shot Fields, a customer of the Stop N'Go convenience store where Arrington was on duty as an armed security guard. In addition, plaintiff alleged that Arrington's employer, Executive Security Systems of America, Inc., hereinafter "Executive," was negligent in hiring Arrington as an armed security guard when Executive knew or in the exercise of reasonable care should have known that he was unfit for such a position and thereby created an unreasonable risk of danger to the patrons of the Stop N'Go. It was contended that such actions constituted not only negligence but gross negligence, all of which was a direct and proximate cause of the injuries and damages suffered by Fields.

It is undisputed that on the night of September 17, 1974, Arrington was on duty as an armed security guard at a Stop N'Go convenience store. He was in uniform, wore a badge, and was armed with a .38 caliber handgun. Sometime between 11:15 p. m. and 12:30 a. m., Fields entered this convenience store to make some purchases. As Fields was standing near the check-out counter, Arrington thought he saw Fields shoplift a tortilla from a warming oven. Arrington asked the store clerk to hand him his nightstick and proceeded to approach Fields. Arrington stopped Fields and subjected him to a search, but the search failed to uncover any stolen items or weapons. After the search, some words were exchanged between Fields and Arrington. It is undisputed that Fields did finally leave the store with his groceries. Arrington admitted that at this point Fields was not a threat to the store clerk, the store, or Arrington himself. However, Arrington then proceeded to follow Fields out the door. The evidence is conflicting as to what transpired outside the store. There were no eyewitnesses.

Arrington testified that he stepped outside the store, nightstick in hand, in order to be sure Fields was not up to some mischief. Once outside, Fields jumped out from behind some telephone booths and tackled him, knocking him back through the glass doors of the store. Arrington stated that he attempted to defend himself with his nightstick but that Fields tried to grab Arrington's still holstered gun. During the scuffle, the handgun discharged and struck Fields in the lower abdomen. Arrington testified that his gun never left his holster. According to Arrington, Fields stepped back after being shot, picked up his groceries, and started to walk away. He had to then kick Fields down in order to keep him from leaving before the police and ambulance could arrive.

Fields, on the other hand, gives a different description of the events outside the store. He testified that upon leaving the store Arrington assaulted him from behind with the nightstick. Fields stated he attempted to leave the premises, but Arrington continued to beat him. Finally, Arrington pulled out his gun and, while threatening to kill him, shot Fields. Fields fell to the ground whereupon, Fields said, Arrington continued to curse and kick him. Fields contends he then lost consciousness.

Arrington had been hired by Executive approximately four months prior to the incident here in question. Arrington had applied for the job and was put to work the next day. Although his employment application answered "yes" to the question "Have you ever been arrested?," no answer was given to the next question concerning the type and disposition of arrest. Arrington testified that no one had ever questioned him concerning his record. Likewise, an application question concerning experience with handguns was left blank. According to Arrington, he merely signed the application in blank and was not aware of who filled it out.

Executive's management personnel agreed that a person with a criminal record should not be hired as a security guard and recognized the need for thorough screening of potential employees. They admitted that a person with a long criminal record was unacceptable as an armed security guard. However, Executive's management personnel were unaware of Arrington's lengthy criminal record and nothing in his personnel file demonstrated any further investigation into his background.

Arrington testified that he was given no instructions or training when Executive issued him a handgun. Executive's management described Arrington's training as "on-the-job" training which consisted of assigning him to night watchman duties at construction sites. In addition, Executive contended Arrington was given an undetermined amount of classroom instruction.

The case was tried to a jury. In response to special issues submitted, the jury found that Executive failed to exercise reasonably prudent care in its investigation of Arrington's background prior to his employment and placement as an armed security guard, that such was a proximate cause of the injuries suffered by Fields, and that this constituted gross negligence. (Special Issues Nos. 1-3) The jury also found that Arrington failed to act as a reasonably prudent security guard before and at the time Fields was shot, that such was a proximate cause of the injuries suffered by Fields, and constituted gross negligence. (Special Issues Nos. 4-6) In addition, the jury refused to find that Fields had provoked Arrington to the point that Arrington's actions thereafter were that of a reasonably prudent guard or that Arrington acted in self-defense. (Special Issues Nos. 7 and 9) On the basis of the jury findings, the district court rendered judgment in favor of Fields against Arrington and Executive, jointly and severally, for $500,000.00 actual damages, against Executive for $200,000.00 exemplary damages, and against Arrington for $100,000.00 exemplary damages. Arrington died after entry of judgment and his estate was substituted in his stead. From this adverse judgment, Executive and Arrington have perfected this appeal predicated upon fifteen points of error.

We will first address the complaints raised by appellants' points of error nos. 3, 4, and 5. The primary thrust of appellants' contention is that the trial court erred in allowing plaintiff to proceed to trial with his negligent hiring cause of action. These points of error complain of the submission of Special Issues Nos. 1, 2, and 3 which dealt with whether Executive was negligent in employing Arrington, whether such employment was a proximate cause of Fields' injuries, and whether such employment constituted gross negligence on the part of Executive. Appellants argue that these issues were rendered moot because Executive had stipulated that at the time in question in this lawsuit, Arrington was within the course and scope of his employment for Executive.

Appellee Fields responds by contending that appellants failed to preserve any error, if any existed, in the submission of Special Issues Nos. 1, 2, and 3. We agree. Appellants complain that the trial court erred in submitting these special issues. However, neither the transcript nor the statement of facts contain any objections made by appellants prior to the submission of these special issues to the jury. The transcript does contain appellants' amended motion for new trial in which these complaints are raised. Rule 272, T.R.C.P., provides that all objections and exceptions to the court's charge not presented before the charge is read to the jury shall be considered as waived. The law is well-settled that such objections may not be raised for the first time on motion for new trial or appeal. Volkman v. Eakman, 496 S.W.2d 752, 757 (Tex.Civ.App. Fort Worth 1973, ref'd n. r. e.); Whitfield v. Shames, 484 S.W.2d 615, 616 (Tex.Civ.App. Amarillo 1972, ref'd n. r. e.); Wilson v. King, 311 S.W.2d 957, 959 (Tex.Civ.App. Austin 1958, ref'd); McDonald, Texas Civil Practice, Vol. 3, sec. 12.27.2, pp. 402-3. The burden is upon appellant to see that a sufficient record is presented on appeal so as to preserve any error upon which he wishes to rely. Rule 413, T.R.C.P.; Bituminous Casualty Corporation v. Moore, 396 S.W.2d 249, 251 (Tex.Civ.App. Tyler 1965, ref'd n. r. e.). Appellant's points of error nos. 3, 4, and 5 are overruled.

We will next address the complaint raised in appellants' second point of error. Appellants contend that the trial court erred in admitting into evidence plaintiff's exhibit no. 2, Arrington's criminal record. Plaintiff's exhibit no. 2 showed that Arrington had a total of seven prior criminal convictions resulting in four trips to the penitentiary. The convictions included burglary with intent to commit theft, grand larceny, burglary, theft, and a bogus check charge. The trial court instructed the jury that these prior convictions...