Campbell v. Lancaster

209 S.W. 269, 1919 Tex. App. LEXIS 253

Opinion

DEVY, J.

(after stating the facts as above). The jury decided that the guard had authority to detain persons going into and out of the yards of the defendants. Assuming this finding to he true, then if the guard, Cole, wrongfully detained and shot, and caused injury to, the appellant, the defendants would be liable, although the particular act of detention was unauthorized. Rucker v. Barker, 151 S. W. 872; Railway Co. v. Parsons, 102 Tex. 157, 113 S. W. 914, 132 Am. St. Rep. 857; Portland Cement Co. v. Reitzer, 135 S. W. 241. And it appears from the evidence that the guard shot the appellant solely for the purpose of compelling him to stay under his detention, and not escape from his custody. It conclusively appears that the guard at the gate was not a peace officer clothed with authority as such to arrest and detain the appellant, and the detention and consequent shooting was, in the circumstance, it is concluded, in virtue of the position of guard. Green’s appeal to Cole to act and detain the appellant at the gate for the offense of assaulting was referable entirely to Cole’s position as guard at the gate.

The second and third findings are merely mixed questions of fact and law; but finding of fact No. 4, that no damage resulted to appellant, is contrary to the evidence, and should, we conclude, he set aside. The fact that appellant was shot and seriously injured is not a contested point in evidence. This ruling necessitates a reversal of the judgment.

Judgment reversed, and the cause re<-manded.

Footnotes

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