Mendoza v. Singer Sewing Mach. Co., 1879-6622.

• Citation: 84 S.W.2d 715
• Decision Date: 03 July 1935
• Docket Number: No. 1879-6622.,1879-6622.
• Parties: MENDOZA et al. v. SINGER SEWING MACH. CO. et al.
• Court: Texas Supreme Court

84 S.W.2d 715

MENDOZA et al. v. SINGER SEWING MACH. CO. et al.

No. 1879-6622.

Commission of Appeals of Texas, Section A.

July 3, 1935.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Alphonse Mendoza and others against the Singer Sewing Machine Company and others. Judgment adverse to defendants was reversed and remanded in part and rendered in part by the Court of Civil Appeals [62 S.W.(2d) 656], and plaintiffs bring error.

Judgments of trial court and of Court of Civil Appeals as to the named defendant set aside and judgment rendered and judgments of trial court and Court of Civil Appeals as to other defendants set aside and as to them cause reversed and remanded for new trial.

G. Woodson Morris, A. G. McNeill, and Harry B. Berry, all of San Antonio, for plaintiffs in error.

Eckford & McMahon, of Dallas, and Birkhead, Beckmann, Stanard & Vance and Gus Mauermann, all of San Antonio, for defendants in error.

GERMAN, Commissioner.

The parties will be designated as in the trial court. The plaintiffs were Mrs. Aurora Mendoza, joined by her husband, and their three daughters, Aurora, Luz, and Olga. They sued Singer Sewing Machine Company, Duke Carver, as constable, W. H. Mussey and W. F. Wright, as deputy constables, and Massachusetts Bonding & Insurance Company, as surety on the official bond of Duke Carver. The facts as alleged by plaintiff and as found by the jury were substantially these:

Under a writ of sequestration issued out of the justice court of Dallas county, Mussey and Wright, the deputies of Duke Carver, went to a house occupied by Mrs. Mendoza and her children for the purpose of taking possession of a sewing machine described in the writ. They were accompanied by J. W. Hancock, a representative of Singer Sewing Machine Company. In their efforts to obtain the machine, the deputies broke open the front door of the house and made an assault upon Mrs. Mendoza as well as upon the three daughters. It was alleged that Mussey, Wright, and Hancock, the last as representative of the Singer Sewing Machine Company, acted jointly and severally in committing the trespass and assaults. The jury found that Mussey and Wright, in breaking open the house and in making the several assaults, were engaged in the performance of official duties under the writ of sequestration.

Judgment was entered by the trial court as follows:

In favor of Mrs. Mendoza for $500 for the forcible entry made by Mussey, such judgment being against Mussey, Carver, Singer Sewing Machine Company, and the surety company; in favor of Mrs. Mendoza for $500 for the assault upon her by Mussey, such recovery being against the parties above named; in favor of Mrs. Mendoza for $500 for the forcible entry by Wright, such judgment being against Wright, Carver, the Singer Sewing Machine Company, and the surety company; in favor of Mrs. Mendoza for $100 for the assault upon her by Wright, such judgment being against the parties last above mentioned; in favor of each of the three daughters for $100 each for the assault upon them by Mussey and for $100 each for the assault upon them by Wright; the recoveries being in each instance against Mussey and Wright, respectively, and against Carver, the Singer Sewing Machine Company, and the surety company. The judgments against the surety company were prorated so that the aggregate would not exceed the amount of the bond, to wit, $1,500.

Apparently none of the findings of the jury were attacked, but the various defendants based their appeals upon questions of law. The Court of Civil Appeals on original hearing reversed and remanded the case for various errors enumerated in the opinion. 62 S.W.(2d) 656, 658. One of the holdings by the court in its original opinion was stated in this language: "The appellants Duke Carver and Massachusetts Bonding & Insurance Company should have been given judgment non obstante veredicto. A constable is not liable for the unauthorized and unratified acts of his deputies, even though they be official acts, and, of course, if Carver was not liable the bonding company could not be liable. We quote in part from 46 C. J. p. 1045, § 330: `The doctrine of respondeat superior applicable to the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not. * * *' Clough v. Worsham, 32 Tex. Civ. App. 187, 74 S. W. 350. Article 6870, R. S. 1925, provides in effect that sheriffs shall be responsible for the official acts of their deputies, etc., but there is no such provision with reference to constables."

In due time plaintiffs (appellees in the Court of Civil Appeals) filed their motion for rehearing, assigning error to the holding of the court above set out. The defendants Carver and surety company also filed motions for rehearing, insisting that under the foregoing holding of the court there could be no liability against them and that the court should reverse and render judgment in their favor. This motion was by the court sustained, and on rehearing the court wrote an opinion giving...