Laney v. Rush, 5254.

• Decision Date: 19 May 1941
• Docket Number: No. 5254.,5254.
• Citation: 152 S.W.2d 491
• Parties: LANEY v. RUSH et al.
• Court: Texas Court of Appeals

152 S.W.2d 491

LANEY v. RUSH et al.

No. 5254.

Court of Civil Appeals of Texas. Amarillo.

May 19, 1941.

Rehearing Denied June 16, 1941.

Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.

Suit by John B. Laney against O. E. Rush and others to recover both actual and exemplary damages in connection with a shooting affray occurring when the named defendant and another policeman attempted to arrest the plaintiff. From a judgment of dismissal, the plaintiff appeals. On motion for rehearing.

Judgment affirmed in part and reversed and remanded in part.

R. G. Smith, of Lubbock, for appellant.

Bradley & Wilson, of Lubbock, for appellees.

FOLLEY, Justice.

The appellant, John B. Laney, sued the appellees, O. E. Bush and Melvin Alvey, alleged to be policemen of the City of Lubbock, Texas, and W. H. Rogers, city manager, and the Aetna Casualty and Surety Company, surety on the official bond of the city manager, to recover $50 actual damages and $3,000 exemplary damages in connection with a shooting affray in Lubbock when the policemen, Rush and Alvey, attempted to arrest Laney. A general demurrer filed by the appellees addressed to the appellant's petition was sustained by the trial court, and upon appellant's declining to amend the suit was dismissed, from which judgment this appeal is prosecuted.

Heretofore on April 14, 1941, we handed down our opinion affirming the trial court's judgment in so far as the Aetna Casualty and Surety Company is concerned, but we reversed the judgment and remanded the cause in so far as Rush, Alvey and Rogers are concerned. The latter parties have filed a motion for rehearing, and upon more mature deliberation we have reached the conclusion that the judgment should also have been affirmed in so far as the city manager, W. H. Rogers, is concerned. Our former opinion is withdrawn and this opinion is substituted.

The appellees challenge the brief of appellant for its failure to contain assignments of error and statements from the record in support of the propositions presented. If the trial court erred in sustaining the general demurrer and dismissing the suit, his action constitutes fundamental error, in which case the form of the brief and the absence of assignments of error become immaterial. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

The appellant alleged in substance that on the night of February 5, 1939, he was driving an automobile belonging to his brother on Broadway Street in Lubbock toward College Avenue when the appellees, Rush and Alvey, who were then on duty as police officers of such city and pursuing the appellant in another car, while attempting to arrest the appellant in line of their duty, "did recklessly, wilfully and maliciously and with intent to, or with reckless and wilful disregard whether they did, kill or maim and seriously injure the plaintiff (appellant), open fire upon the plaintiff with a loaded revolver of heavy and deadly calibre"; that one of the bullets fired from said revolver struck and penetrated the metal exterior of the car appellant was driving at a point in a direct line with appellant's body; that such bullet lodged in the wooden framework of the seat upon which the appellant was sitting at a point where it would have entered the body of the appellant if it had penetrated the framework; that by reason of said acts of the appellees the appellant was "placed in great fear and apprehension for his life and suffered great nervous and mental shock not only at the time but for some days thereafter"; that by reason of the premises the appellant had sustained actual damages in the sum of $50; and that by reason of the wilful and malicious acts of the appellees he was entitled to recover exemplary damages in the sum of $3,000.

The appellant further alleged that W. H. Rogers was the city manager of Lubbock and charged with the supervisory duty and authority of seeing that the laws and ordinances of the City of Lubbock were enforced; that he was invested with the duty and authority of management, control and supervision, with power of dismissal, over all the police officers of the city, including Rush and Alvey, who were his deputies; that the unlawful, malicious and wrongful acts of Rush and Alvey were the acts of Rogers, and that all three of such appellees were joint tort-feasors; and that in the alternative Rogers "knew and was aware of the fact which is herewith averred, that said defendants, O. E. Rush and Melvin Alvey, were malicious, dangerous, reckless and negligent men incompetent and unfit to serve as such police officers of the city, not only at the time of the commission of the aforesaid wrongful acts upon the plaintiff but for a long period of time prior thereto and were likely to commit the aforesaid wrongful and malicious acts, and yet he, the said W. H. Rogers wrongfully and negligently selected, employed, retained, approved and maintained them as such police officers and as his agents, deputies and servants in said job of enforcing the laws and ordinances of said city".

The appellant also alleged that the Aetna Casualty and Surety Company, at the time of such wrongful conduct of the policemen, was surety on the official bond of W. H. Rogers in the sum of $5,000 wherein it undertook and agreed to pay the City of Lubbock such sum of money conditioned that Rogers should faithfully account for all monies and things of value coming into his hands as such official, and, by reason of Section 30 of Article IX of the charter of the city, such bond was further conditioned as implied in law that he should faithfully discharge and perform his duties as such official; that such bond was made payable to the City of Lubbock but for the benefit of the appellant who is the real party in interest; and that the wrongful, unlawful and tortious acts of W. H. Rogers, through his deputies, Rush and Alvey, constituted a breach of the condition of such surety bond upon which the Aetna Casualty and Surety Company became liable to pay the appellant his alleged damages. Such were the allegations of the appellant upon which the demurrer was sustained. The appeal, therefore, presents but one question and that is whether or not a cause of action was alleged.

It is an elementary rule that exemplary damages may not be recovered unless actual damages are suffered. 13 Tex. Jur. 240, para. 132. It will therefore be necessary to determine whether or not the appellant has alleged a cause of action for actual damages. It is apparent from the above allegations that the appellant seeks to recover actual damages solely for fright or mental shock suffered by him at the time of the alleged wrongful conduct and "for some days thereafter". He does not allege that any other physical injury resulted by reason of the alleged wrongful acts of the policemen nor by reason of the fright or mental shock. The issue is thus reduced to the liability of the appellees for fright and mental shock alone.

It is the general rule that damages may be recovered for mental suffering accompanying physical injuries negligently inflicted. Gulf, C. & S. F. R. Co. v. Hayter et al., 93 Tex. 239, 54 S.W. 944, 47 L.R.A. 325, 77 Am.St.Rep. 856. It is also the rule in this jurisdiction that recovery may be had for physical injuries resulting from fright or mental suffering caused by the wrongful act or omission of another provided the act or omission is the proximate cause of the injury. Hill et al. v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618. When the cause of action is founded solely on negligence, it is the further rule that no recovery can be had for mere fright or mental suffering alone unless such fright or mental suffering is either attended or followed by some other injury. Gulf, C. & S. F. R. Co. v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am.St.Rep. 866. The...