424 S.W.2d 627
In 1967 the Supreme Court of Texas considered a suit for actual and exemplary damages brought by plaintiff Fisher, a mathematician with the Data Processing Division of the Manned Spacecraft Center near Houston, against defendants Carrousel Motor Hotel, Inc., the Brass Ring Club located in the Carrousel, and Robert W. Flynn, an employee of the Carrousel who managed the Brass Ring Club.1 Flynn died before trial, and the suit proceeded against the two corporate defendants.2 Fisher had been invited by Ampex Corporation and Defense Electronics to a one-day meeting on telemetry equipment at the Carrousel that included a luncheon at the Brass Ring Club.3
After the morning session the group of 25 or 30 guests adjourned to the Brass Ring Club for a buffet-style lunch.4 Fisher stood in line with the others and just ahead of a graduate student from Rice University who later testified at trial.5 As Fisher was about to be served, Flynn approached him, snatched the plate from his hand, and shouted that Fisher, a Negro, could not be served in the club.6 Fisher testified that he was not actually touched and did not experience fear or apprehension of physical injury, but he was highly embarrassed and hurt by the conduct in the presence of his associates.7
The jury found that Flynn had forcibly dispossessed Fisher of his dinner plate and shouted in a loud and offensive manner that Fisher could not be served, thereby subjecting him to humiliation and indignity.8 It was stipulated that Flynn was an employee of the Carrousel and managed the Brass Ring Club.9 The jury further found that Flynn acted maliciously and awarded Fisher $400 in actual damages for humiliation and indignity plus $500 in exemplary damages.10
The trial court rendered judgment for the defendants notwithstanding the verdict.11 The Court of Civil Appeals affirmed.12 The Supreme Court of Texas granted review.
Whether there was evidence that an actionable battery was committed?13
It has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body.14 The protection extends to any part of the body, or to anything which is attached to it and practically identified with it, including contact with the plaintiff’s clothing or with any other object held in his hand.15
Yes. The jury found that Flynn forceably dispossessed plaintiff of his dinner plate and shouted in a loud and offensive manner that Fisher could not be served.16 Fisher stood in line holding the plate just ahead of the Rice University graduate student when Flynn approached and snatched the plate from his hand.17 Although Fisher testified that he was not actually touched and did not experience fear or apprehension of physical injury, the intentional snatching of the plate from his hand constituted an offensive invasion of his person.18
The forceful dispossession of the plate in an offensive manner was therefore sufficient to constitute a battery.19
There was evidence that an actionable battery was committed, so the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.20
Whether the two corporate defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn?21
A principal or master is liable for exemplary or punitive damages because of the acts of his agent if the agent was employed in a managerial capacity and was acting in the scope of employment.22 The four categories of liability are disjunctive. Liability exists if the agent was employed in a managerial capacity and was acting in the scope of his employment even if the principal did not authorize or ratify the particular conduct.23
Yes. It was stipulated that Flynn was manager of the Brass Ring Club as an employee of the Carrousel Motor Hotel.24 The jury found that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff while acting within the course and scope of his employment.25 Flynn was attempting to enforce the Club rules by depriving Fisher of service at the time of the incident.26
Because Flynn was employed in a managerial capacity and acted in the scope of his employment, the corporate defendants are liable for exemplary damages. This liability exists regardless of the jury finding that the Carrousel did not authorize or approve Flynn’s conduct.27
The two corporate defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.28