Kendall v. Whataburger, Inc.

• Decision Date: 20 October 1988
• Docket Number: No. 01-87-00106-CV,01-87-00106-CV
• Citation: 759 S.W.2d 751
• Parties: Kathy KENDALL, Appellant, v. WHATABURGER, INC., and Isaac King Ervin, Appellees. . (1st Dist.)
• Court: Texas Court of Appeals

Page 751

759 S.W.2d 751

Kathy KENDALL, Appellant, v. WHATABURGER, INC., and Isaac King Ervin, Appellees.

No. 01-87-00106-CV.

Court of Appeals of Texas,

Houston. (1st Dist.)

Oct. 20, 1988.

Michael Kerensky, John M. O'Quinn & Assoc., Houston, for appellant.

John H. Williams, Williams and Smith, Neal H. Paster, Paster & Archer, Houston, for appellees.

Before LEVY, WARREN and DUGGAN, JJ.

OPINION

LEVY, Justice.

This is an appeal from both a partial summary judgment and a take-nothing jury verdict on the remaining issue at trial.

Appellant and a group of her friends stopped at a Whataburger restaurant. Appellant ordered some food, and became dissatisfied with either the food or the service or both. She voiced her complaint to Isaac Ervin, a young employee working behind the service counter. Shortly thereafter, appellant was struck in the face with hot grease and a metal french fry basket wielded by Ervin. She subsequently brought suit to recover damages for the wrongful actions of the employee, the vicarious liability of the employer ("Whataburger"), and the negligent hiring and supervision of Ervin by Whataburger.

Whataburger received a partial summary judgment on the issues of course and scope of employment and negligent hiring. The parties proceeded to trial on the sole remaining issue of negligent supervision. The jury found in Whataburger's favor that there was no negligence in its supervision of Ervin.

Appellant asserts in her first point of error that the trial court erred in granting Whataburger's motion for partial summary judgment because no competent summary judgment evidence was submitted in support of the motion. Appellant also avers that her timely filed response and affidavit raised issues of fact regarding employee Ervin's course and scope of employment and negligent hiring by appellee. She argues that these issues required trial before a jury, thus causing the partial summary judgment to be inappropriate.

The only summary judgment proof offered by Whataburger was the affidavit of Pete Opel, Vice President for Personnel of Whataburger, Inc. We review it in the light of Rule 166a(e).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.

Tex.R.Civ.P. 166a(e).

The question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of the claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. On appeal, in deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Wilcox v. St. Mary's Univ. of San Antonio, Inc., 531 S.W.2d 589, 592-93 (Tex.1975). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.; J.C. Kinley Co. v. Haynie Wire Line Serv., Inc., 705 S.W.2d 193, 195 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Opel's sworn affidavit in support of appellees' motion for partial summary judgment reads in pertinent part:

BEFORE ME, the undersigned authority, personally appeared PETE OPEL, who being known to me, and being duly sworn, deposes and says:

1. That, I am vice president of Personnel for Whataburger, Inc.

2. That, Isaac King Ervin was an employee of Whataburger, Inc. on November 28, 1981.

3. That, before Isaac King Ervin was hired, he represented that he was 18 years old, had never been convicted of any crimes, and that he had worked for McDonald's for five months as a cashier and cook.

4. That, Isaac King Ervin was employed by Whataburger, Inc. for 31 days prior to November 28, 1981 and during that time was a satisfactory employee who was not involved in any unusual incidents.

Opel's affidavit does not comply with the requirements of rule 166a(e) because it fails to "positively and unqualifiedly represent the 'facts' as disclosed in the affidavit to be true and within his personal knowledge" and, therefore, does not constitute competent summary judgment proof. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).

Appellant specifically and timely pointed out this defect in Opel's affidavit in her objections to Whataburger's motion for summary judgment. Whataburger thus had ample opportunity to cure this defect but failed to do so.

Whataburger argues that the contents of its summary judgment motion were sworn to by its attorney and that appellant never objected to the attorney's affidavit before the granting of the summary judgment. Hence, Whataburger contends, all assertions contained in the sworn summary judgment motion, even if hearsay, constitute sufficient proof to support a summary judgment. However, it is well settled in Texas that sworn pleadings are not summary judgment evidence. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). A motion for summary judgment is a pleading and may not itself be considered as summary judgment evidence. See Barrow v. Jack's Catfish Inn, 641 S.W.2d 624, 625 (Tex.App.--Corpus Christi 1982, no writ). Pleadings are to be ignored when determining whether or not to grant a motion for summary judgment. As this Court has previously stated, "[i]n measuring summary judgment evidence, pleadings, even if sworn to, do not constitute summary judgment proof." J.C. Kinley Co., 705 S.W.2d at 195 (cite omitted).

The trial court erred in granting Whataburger a partial summary judgment on the issue of negligent hiring because Whataburger offered no competent proof in support of its motion.

Concerning the issue of whether Ervin's assault on appellant occurred within the course and scope of his employment, appellant relied on Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880 (1948), in her response to appellees' motion for summary judgment. In Felder, the Texas Supreme Court held that

the master is liable for ... any act of the servant which, if isolated, would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are treated as being one indivisible tort, which, for the purposes of the master's liability, takes its color and quality from the earlier act.

Felder, 208 S.W.2d at 881.

Appellant contended in her response to motion for summary judgment that Ervin was carrying out his master's duties, i.e., "serving hamburgers," when he struck the plaintiff with the french fry basket. His tortious actions were therefore committed before he had finished his master's business. The tortious act occurred when the tortfeasor was behind the counter and the plaintiff was in front of the service counter on premises owned by Whataburger, where the employee was actually working. Appellant asserts that the facts of the case before the Court clearly show that, as a matter of law, Ervin was within the course and scope of his employment when he committed the tortious act and, therefore, under Felder, the master would be responsible for the acts of servant.

However, as the Texas Supreme Court held in Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 197-98, 247 S.W.2d 236, 239-40 (1952),

It is not ordinarily within the scope of a servant's authority to commit an assault on a third person.... Usually assault is the expression of personal animosity and is not for the purpose of carrying out the master's business.

The nature of the employment may be such as necessarily to involve at times the use of force, as where the employee's duty is to guard the employer's property and to protect it from trespassers, so that the act of using force may be in furtherance of the employer's business, making him liable even when greater force is used than is necessary.... [T]he master may be liable for the act of the servant even though the master has expressly forbidden the particular act.... 'But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master's business, and for the accomplishment of the object for which the servant is employed.' (Citations omitted).

In reviewing Whataburger's motion for summary judgment, the court also had before it appellant's response to Whataburger's motion and her supporting affidavit. A review of appellant's response and affidavit reveal that, as a matter of law, there was no genuine issue of fact as to whether Ervin was acting within the course and scope of his employment when he assaulted appellee with the greasy hot french fry basket. Such an assault by Ervin could not possibly have been so connected with and immediately arising out of his job of taking food orders, and preparing and delivering food orders to customers, that his authorized employment tasks and the assault could have merged into one indivisible tort, imputable to the master, Whataburger.

We conclude that it was not erroneous for the trial court to have granted Whataburger a partial summary judgment on the issue of Ervin's course and scope of employment. Appellant's first point of error is sustained as to the issue of negligent hiring, but is overruled as to the issue of course and scope of employment.

In her second point of error, appellant urges that the trial court erred in denying her a new trial...