Moore's, Inc. v. Garcia

• Decision Date: 30 June 1980
• Docket Number: No. 1468,1468
• Citation: 604 S.W.2d 261
• Parties: MOORE'S, INC., Appellant, v. Pablo S. GARCIA, Appellee.
• Court: Texas Court of Appeals

Page 261

604 S.W.2d 261

MOORE'S, INC., Appellant, v. Pablo S. GARCIA, Appellee.

No. 1468.

Court of Civil Appeals of Texas, Corpus Christi.

June 30, 1980.

Rehearing Denied Aug. 29, 1980.

Abraham Moss, Law Offices of Guy H. Allison, Corpus Christi, for appellant.

Charles R. Cunningham, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

The question of whether a jury's findings of false imprisonment and assault of a customer in a retail store by an off-duty police officer acting as a security agent are supported by the evidence is raised in this appeal. Moore's, Inc., the defendant below, brings this appeal to challenge the judgment of the trial court in favor of Pablo Garcia, the plaintiff below. We affirm.

A review of the pertinent facts reflects the following. Pablo Garcia, along with a friend, went to a local retail store, Moore's, Inc., to purchase several items for a party. After Garcia bought a pie, the two men left the store. Upon entering the car outside the store, Garcia's friend realized that he had forgotten to pay for some candy. The security guard of the store, Officer Bieniek, who was also an off-duty policeman, witnessed the alleged shoplifting of the candy and followed the men to their car. At the car, Officer Bieniek asked the appellee's friend to accompany him back into the store to inquire about the shoplifting.

Both men accompanied Officer Bieniek back into the store. The progression of events from this point varies according to the testimony offered by each side. Officer Bieniek testified that he took Garcia's friend into a small room in the back of the store and began his investigation. The investigation was interrupted by Garcia who banged on the door and loudly inquired about what was happening. Officer Bieniek allegedly explained to Garcia that his friend was under arrest, at which point Garcia struck a time clock in rage and stormed out of the store, cursing as he left.

Officer Bieniek followed Garcia out of the store and arrested him for destruction of private property, breach of the peace, and interfering with a lawful arrest. Several on-duty police officers soon arrived on the scene and took charge of the appellee, who was then under arrest by Officer Bieniek. He was handcuffed and taken to jail where he was booked, photographed and fingerprinted. Appellee remained in jail for approximately three hours until he was released on bond. Later all charges were dismissed.

Garcia's version is similar except for the alleged striking of the time clock. He testified that he never struck the clock and that he only inquired why his friend was being arrested, and that Officer Bieniek rudely told him to leave the store and slammed a large metal door in his face. Upon leaving the store, Garcia was intercepted by Officer Bieniek who grabbed him by the arm and pushed him. Officer Bieniek informed him that he was under arrest for destroying the time clock, which was the first time he knew of the damage to the clock.

Garcia brought this suit seeking damages, both actual and exemplary, for the false imprisonment and assault committed with malice. Trial was to a jury, which found Moore's, Inc., guilty of false imprisonment and assault with malice because of the acts by its employee. Actual damages of $50,000.00 and exemplary damages of $25,000.00 were awarded by the jury. Based upon the jury verdict, the trial court rendered judgment in favor of Garcia. Moore's, Inc., appeals. Appellant has brought forward 21 points of error, complaining essentially of the lack of evidence to support the findings. The points of error will be grouped according to the issues submitted to the jury.

False imprisonment has been defined as ". . . the direct restraint by one person of the physical liberty of another without adequate legal justification." Kroger Co. v. Demakes, 566 S.W.2d 653 (Tex.Civ.App.-Houston (1st Dist.) 1978, writ ref'd n.r.e.); J. C. Penney Co. v. Duran, 479 S.W.2d 374, 379 (Tex.Civ.App.-San Antonio 1972, writ ref'd n.r.e.). See Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970). The essential elements of false imprisonment are: 1) a willful detention of the person; 2) against the consent of the party detained; and 3) a detention without authority of law. Sanchez v. Garza, 581 S.W.2d 258 (Tex.Civ.App.-Corpus Christi 1979, no writ).

Since there are two different interpretations of the events leading up to the arrest, the question of whether false imprisonment did occur was properly submitted to the jury in their role as the trier of facts. Explanatory instructions about the legal definition of false imprisonment were also submitted with this issue. The jury answered affirmatively. We hold that the evidence, as we have outlined it above, is factually and legally sufficient to support the jury's answer.

Appellant also challenges the contention by appellee that an assault was committed. A definition for assault was properly submitted to the jury embodying the definition found in § 22.01 of the Penal Code along with a special issue inquiring as to whether an assault was committed. The jury found that the employee of the appellant did commit an assault during the arrest.

It is the law of this State than an assault is both an offense against the peace and dignity of the State as well as an invasion of private rights. Texas Bus Lines v. Anderson, 233 S.W.2d 961 (Tex.Civ.App.-Galveston 1950, writ ref'd n.r.e.). For that reason, the definition of assault, whether in a criminal or civil trial, is the same. Hogenson v. Williams, 542 S.W.2d 456 (Tex.Civ.App.-Texarkana 1976, no writ). The definition set out by the Penal Code in § 22.01(a)(3) was correctly embodied in the instructions given to the jury which definition provides that a person commits an offense when he:

"(3) intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative."

In that regard, the testimony by Garcia shows that Officer Bieniek grabbed the appellee by the arm and forcibly pushed him away from the car. Testimony by Officer Bieniek contradicts the shoving incident, but he does admit that he grabbed the appellee by the arm while arresting him. Such evidence of physical contact is factually and legally sufficient to support the jury's finding that an assault was committed.

Appellant also questions whether Officer Bieniek was acting within the scope of employment. Such contention involves the application of principles of agency law. The controlling statement of law relating to acts performed within the scope of employment is embodied in the Restatement of the Law of Agency, § 229: "The conduct must be of the same general nature as that authorized or incidental to the conduct authorized." The judicial application of this doctrine is found in an opinion by the Supreme Court: . . . the act of the servant must be in furtherance of the master's business or for the accomplishment of the object for which he was employed . . . not the result of insults or personal animosities. Smith v. M System Food Stores, 297 S.W.2d 112 (Tex.Sup. 1957). See also Purvis v. Prattco, Inc., 595 S.W.2d 103 (Tex.Sup. 1980) and Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.Sup. 1967).

Public policy considerations also play an important part in holding a corporation liable for acts done by its employees in the course of business. A corporation cannot ". . . subject its patrons to the hazards of an irresponsible detective agency while escaping all danger of the legal ramifications adverse to itself." Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882, 889 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). See also Damron v. C. R. Anthony Co., 586 S.W.2d 907, 914 (Tex.Civ.App.-Amarillo 1979, no writ). Only in those instances when an employee turns aside, no matter how short the time, from the prosecution of the employer's work to engage in an affair wholly his own does he cease to work the employer and relieve the employer from liability for his actions. Hein v. Harris County, 557 S.W.2d 366 (Tex.Civ.App.-Houston (1st Dist.) 1977, writ ref'd n.r.e.).

The record indicates that Officer Bieniek was acting within the scope of his employment. Depositions introduced into evidence reflected that Officer Bieniek was an employee of the appellant whose job was to maintain store security. The president of the appellant corporation testified that Bieniek was employed to prevent shoplifting. He further testified that he approved of and condoned all acts done by Bieniek. Bieniek himself testified that the verbal instructions he received as to his employment were to ". . . protect the store from inside internal theft as well as watch for shoplifting in the store." The arrest of the appellee on that evening was a part of his job according to his testimony.

It is apparent that the duties of Officer Bieniek in his employment with the appellant involved activities which might require exercising force to fully carry out his duties. In those situations in which an employee may need to use force to carry out the duties of his employment, the employer is not relieved of liability if greater force is used than necessary. Texas & P. Ry. Co. v. Hagenloh, 247 S.W.2d 236 (Tex.Sup. 1952); Levine v. Enlow, 462 S.W.2d 50 (Tex.Civ.App.-Waco 1970, no writ); Kroger Co. v. Warren, 420 S.W.2d 218 (Tex.Civ.App.-Houston (1st Dist.) 1967, no writ).

The record is uncontroverted that Officer Bieniek was acting within the scope of his employment when the incident occurred. It is further apparent that the corporation ratified such acts. Therefore, there was no question of fact in that regard which was required to be submitted to the jury for determination. K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 153 (Tex.Civ.App.-Beaumont 1974, writ dism'd).

Special issues questioning whether the false imprisonment and assault were committed with malice...