Ramos v. Frito-Lay, Inc.

• Decision Date: 31 January 1990
• Docket Number: FRITO-LA,No. C-8849,INC,C-8849
• Parties: Salvador RAMOS, Petitioner, v., Respondent.
• Court: Texas Supreme Court

Page 667

784 S.W.2d 667

Salvador RAMOS, Petitioner, v. FRITO-LAY, INC., Respondent.

No. C-8849.

Supreme Court of Texas.

Jan. 31, 1990.

Rehearing Overruled March 21, 1990.

Clinton F. Cross, El Paso, for petitioner.

Jack L. Brewster, El Paso, for respondent.

DOGGETT, Justice.

The central issue in this appeal is whether an employer may be held liable in exemplary damages for the actions of its management-level employee in performing a non-managerial task. The court of appeals reversed the trial court's award of exemplary damages in this cause because Frito-Lay's sales manager was not performing a managerial task. 770 S.W.2d 887. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of points it did not reach.

Liability in the trial court was premised on the intentional tort of Jose Padilla, a Frito-Lay employee, resulting in injury to Petitioner Salvador Ramos. Padilla held the title of district sales manager and had supervisory authority over twelve sales employees. On the day of the incident in question, Padilla was substituting for one of these salesmen who was on vacation, as he was unable to secure a replacement. Padilla made a route stop at Sal's Beverage Shop, a convenience store owned and operated by Ramos. A dispute arose between Padilla and Ramos concerning the ownership of a display rack, and a shoving incident ensued in which Ramos was injured.

The jury found that Padilla had committed an assault and battery proximately causing damage to Ramos and that Padilla was not deviating from the service of Frito-Lay in the furtherance of its business. The trial court entered judgment on the verdict, including an award for physical pain, medical expenses and exemplary damages. The court of appeals reversed as to medical expenses and exemplary damages but affirmed the trial court's award of damages for physical pain.

We must first consider whether error has been properly preserved. Ramos contends that Frito-Lay has waived its right to complain of the exemplary damage award because it failed to make specific objection in the trial court as to premising such award on Padilla's managerial capacity as required by Rule 52(a), Texas Rules of Appellate Procedure. Frito-Lay responds, not by pointing to a specific objection preserving error, but by contending that it was Ramos' burden to obtain affirmative jury findings on all elements necessary to predicate liability for exemplary damages. Since Ramos failed to submit issues as to managerial capacity, Frito-Lay asserts it had no obligation to object.

There can be no question that it was Ramos' burden to obtain affirmative answers to jury questions as to the necessary elements of his cause of action. If an entire theory were omitted from the charge it would be waived; and Frito-Lay would indeed have no duty to object. Tex.R.Civ.P. 279; see Strauss v. LaMark, 366 S.W.2d 555, 557 (Tex.1963). Where, however, issues are omitted which constitute only a part of a complete and independent ground and other issues necessarily referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if no objection is made and they are supported by some evidence. Tex.R.Civ.P. 279; see Strauss, 366 S.W.2d at 557.

Here, the jury found that Padilla committed an intentional tort while in the scope of his employment and awarded exemplary damages against Frito-Lay. The trial court's judgment included an award for exemplary damages. Although the question of whether Padilla was employed in a managerial capacity and acting in the scope of his employment constituted an element of Ramos' cause of action, it did not encompass an independent ground of recovery. See Treasure City v. Strange, 620 S.W.2d 811, 813 (Tex.Civ.App.--Dallas 1981, no writ). Objection by Frito-Lay to the omission of the element of managerial capacity was thus necessary to prevent a deemed finding against it. See Accent Builders Co. v. Southwest Concrete Systems, Inc., 679 S.W.2d 106, 110-11 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). Frito-Lay did not object, nor did it request specific findings by the trial court. If the omitted...