Norris v. China Clipper Cafe, 12479

• Decision Date: 12 March 1953
• Docket Number: No. 12479,12479
• Citation: 256 S.W.2d 664
• Parties: NORRIS et al. v. CHINA CLIPPER CAFE et al.
• Court: Texas Court of Appeals

Page 664

256 S.W.2d 664

NORRIS et al. v. CHINA CLIPPER CAFE et al.

No. 12479.

Court of Civil Appeals of Texas, Galveston.

March 12, 1953.

Rehearings Denied April 16, 1953.

Eugene N. Catlett, Houston (Burris, Benton, Baker & Zwiener, Houston, of counsel), for appellant Marie Elizabeth Norris.

F. Warren Hicks, Houston, for appellant Paula Allman, and for appellees China Clipper Cafe et al.

MONTEITH, Chief Justice.

This action was brought by appellant, Marie Elizabeth Norris, for the recovery of damages from Paula Allman, her husband, and her employers, for an alleged assault on her by Paula Allman. In answer to special issues submitted to it, the jury found that Paula Allman was acting within the scope and course of her employment with the China Clipper Cafe and its owners, and that it did not reasonable appear from the evidence that-from the acts of Mrs. Norris or words coupled with her acts-she was about to make an unlawful attack upon Paula Allman. The jury found that Mrs. Norris had suffered damages in the sum of $15,300 by reason of the occurrence, made the basis of this suit.

The court granted the motion of appellees China Clipper Cafe, L. C. Foon, Leo Jack, Lim Duck Turn and Yee Leo for judgment non obstante veredicto, and rendered judgment against Apula Allman and her husband, Irving E. Allman, for the sum of $15,300. Both Paula Allman and Marie Elizabeth Norris perfected an appeal from this judgment.

Paula Allman was employed by the China Clipper Cafe as a waitress and was working in that capacity on August 26, 1950. In that cafe each waitress was assigned certain tables and booths and was supposed to serve the food and perform the regular duties of a waitress on the tables within her station. On that date, at about 11:30 p.m., the Norris party arrived at the China Clipper Cafe and were seated at one of Paula Allman's tables. Mrs. Norris and her former husband, Ernest Norris, were married earlier that day and then went to the Auditorium Hotel, where they remained for two or three hours talking and drinking, and from there they went to the Rex Bar, and later to the China Clipper Cafe, where they were seated at one of Paula Allman's tables. A short time thereafter Paula Allman told Lee Foon, one of the owners of the cafe, that she was having trouble with the Norris party and requested him to assign another waitress to that table. L. C. Foon testified that he assigned the Norris party's table to another waitress, and that Paula Allman continued to work the other tables in her station, and that when Mrs. Norris called Mrs. Allman a son of a bitch they started to fight.

Mrs. Francis Johnson, mother of Mrs. Norris, testified that on the night of the wedding of Mrs. Norris and her former husband, Ernest Norris, the waitress, Paula Allman, had some words about a cup of coffee and that there were also some words between the waitress and Mrs. Norris in regard to some crackers and that the Chinaman sent them a new waitress who took over the table and waited on them; that Paula Allman continued to wait on other tables in the area and would throw snarls at them. That there were also some words about the steak that was served them, and that Mrs. Allman turned around and called Mr. Norris a 'pimp.' Mrs. Johnson testified that they had a highball at the Auditorium Hotel and that they stayed at the Auditorium Hotel three or four hours; that the bellhops at the hotel were friends of Mr. Norris and that they gave them a pint of liquor that they used for the highballs. She testified that they went to the Rex Bar, and from there, to the China Clipper. That the waitress brought the other cup of coffee and said she ought to throw it in Marie's face.

Mrs. Pulaski, an aunt by marriage of the plaintiff, testified that she was in the Norris party; that some beer was drunk at the Town Lounge; that from there they went to the Rex Bar where they stayed around two hours and drank a few beers; that they stayed three hours in the Town Lounge; that they drank a few beers at the Rex Bar and then went to the China Clipper, where they arrived around 11:30. That she was not present when the incident occurred.

W. B. Sutton testified that he was a member of the Norris party on the night in question; that after the wedding they went to the coffee shop in the hotel and had coffee and then went to a tavern and had a few beers and then to the Talk of the Town; that after they got through drinking a few beers they went to the China Clipper Cafe, where they stayed until all this 'static' happened. That Paula Allman came by their table and was 'popping off', and Mr. Norris went and asked for another waitress to serve their table. That he saw the blonde catch Mrs. Norris by the hair of her head and hit her at the same time.

Mrs. Joyce Anderson testified that she was sitting with her husband in a booth next to the Norris table in the China Clipper Cafe; that they arrived at the China Clipper around 12:15 and were seated in a booth, and the Norris table was next to their booth; that when they went in, the Norris party was already in the cafe and that the table was close enough for her husband to touch it. That when they arrived the blond waitress was waiting on the Norris table; that she was extremely nice and courteous to them and that the Norris party, under the influence of liquor, were loud, drunk and real nasty the way they talked to the waitress; that everybody in the cafe was looking at them when they changed waitresses, when the dark-headed girl took over; that after they changed waitresses Mrs. Allman continued to pass by the table in serving other partrons in her station; and that Mrs. Norris called Mrs. Allman a blonde hussy and then called Mrs. Allman a blond bitch and a peroxide whore; that Mrs. Allman got Mrs. Norris by the hair and Mrs. Norris slid out of her chair onto the floor, that when Mr. Norris attempted to strike the waitress, her husband got up and told him he would 'knock hell out of him' if he tried to hit the waitress and that about that time a policeman came up and took charge. That Mrs. Norris' mother said: 'that's my daughter', and Mrs. Allman said she was a mother too and she didn't like the names they called her. B. A. Anderson, the husband of Mrs. Joyce Anderson, verified her statements.

Alvin Harrison, a witness on behalf of defendants, testified that on the night of August 26, 1950, he was in the Rex Bar; that he went there about 11:30; that he saw the Norris party at the Rex Bar and later saw them at the China Clipper Cafe. That at the Rex Bar there were whiskey and beer bottles on their table; that he heard the waitress at the Rex Bar tell them that she could not serve them any more beer.

Marie Elizabeth Norris testified that she was married at 7:00 that evening and that they went to the Auditorium Hotel, and from there to the Talk of the Town, where they had a few drinks; that she drank a highball and that her husband was drinking. That from the time Mrs. Allman was taken off their table until she grabbed her by the hair of her head, at least twelve minutes had passed. She testified that when her husband asked for crackers Mrs. Allman said: 'I will bring them when I get time.' * * * 'I know you are a bellhop, you are a pimp at the Lamar Hotel.' That Mrs. Allman was removed as a waitress and that she said nothing after that before Mrs. Allman grabbed her by the hair of her head. That she had been charged with being drunk on March 20, 1952, and paid a $5.00 fine; that on the night of her wedding, she was drinking but was not intoxicated but she didn't know about her husband as she didn't know how much he could hold.

Mrs. Paula Allman, who, at the time of the trial resided in San Diego, California, testified by written deposition that on the night of August 26, 1950, she was working at the China Clipper Cafe as a waitress; where she had been employed for about a year and that she continued to work there until October, 1950, and left on account of illness. That on the night of August 26, 1950, she waited on a table in the China Clipper Cafe occupied by the Norris party; that she had never seen them prior to that night; that on the night in question her duties were limited to taking orders from customers and waiting on customers in a certain portion of the cafe; that she had four booths and five tables, and that plaintiff and her party came into the cafe between 12:30 and 1:00 a. m.; that she gave them a menu and water and took their orders and Mr. Norris kept insisting that she bring them some crackers; and she explained to him that she was very busy and that she would get them some crackers as soon as possible; that Mrs. Norris made some very nasty remarks to her and said, 'if you don't hurry up and bring our crackers, would you like to have this catsup bottle?' That she requested Mr. Foon, the manager, to assign another waitress to the table because Mr. and Mrs. Norris were so nasty and because she realized she...