Singer Sewing Mach. Co. v. Mendoza

62 S.W.2d 656, 1933 Tex. App. LEXIS 1032

• Court: Court of Appeals of Texas
• Decided: April 19, 1933
• Docket: No. 9046
• Status: Published

Opinions

MURRAY, Justice.

Alphonse Mendoza and wife, Mrs. Aurora Mendoza, and their daughters, Aurora, Luz, and Olga Mendoza, appellees, brought this suit against Singer Sewing Machine Company, Duke Carver, as constable, W. H. Mus-sey and W. F. Wright, deputy constables, and Massachusetts Bonding & Insurance Company, as surety on the official bond of Duke Carver, constable, appellants. Appellees sought a recovery for abuse of process in the serving of a writ of sequestration issued out of the justice court of Dallas county m a suit instituted by the Singer Sewing Machine Company against Mrs. Mendoza. The abuse of process was committed by Mussey and Wright in forcibly entering the dwelling of appellees for.the purpose of seizing a sewing machine described in the writ of sequestration. There was evidence establishing the fact that Mrs. Mendoza and her daughters were assaulted by Mussey and Wright when they attempted to prevent the taking of the machine. The findings of the jury were favorable to appellees, and appellants have appealed.

It seems to be the adopted rule in this state that officers cannot break the outside doors of a dwelling to serve civil process. Thus the officers were trespassers in Mrs. Mendoza’s house and did not have the right to use necessary force in making this seizure, and were therefore guilty of assault on appellees. Hillman v. Edwards, 28 Tex. Civ. App. 308, 66 S. W. 7-88.

The court, in special .issue No. 5b, propounded to the jury the following question: “What amount of actual damages, if any, would, if paid now, reasonably compensate said plaintiff, Miss Aurora Mendoza, for such assault and battery? Answer stating amount.” To which the jury answered: “$100.00.” The court did not give the jury any measure of damages to govern them in answering this question. Appellants excepted to the question for such failure and omission, which was overruled by the court and exception reserved.

This action of the trial court constitutes error. City of Beaumont v. Dougherty (Tex. Civ. App.) 298 S. W. 631; Houston & T. C. R. Co. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073; Kansas City, M. & O. Ry. Co. v. Worsham (Tex. Civ. App.) 149 S. W. 755; Missouri, K. & T. Ry. Co. v. Beasley, 106 Tex. 160, 155 S. W. 183, 160 S. W. 471 ; 13 Tex. Jur. pp. 456-57; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Hutson v. Bassett (Tex. Civ. App.) 35 S.W.(2d) 231; Butler v. Herring (Tex. Civ. App.) 34 S. W.(2d) 307; sections 255 and 288, Spear’s Law of Special Issues.

The same error was committed with reference to special issues Nos. 6b, 7b, 8b, and 9b.

The evidence in this case' shows that Mussey and Wright, acting together, broke into the dwelling. The jury found that Mus-sey caused damages to the extent of $500' by so doing and that Wright, in a like manner, caused damages to the extent of $500. As a result of these findings a recovery was allowed in the sum of $1,000 against Duke Carver, Singer Company, and the bonding company. This undoubtedly was a double recovery; the breaking into the dwelling was 011c act done by joint tort-feasors in furtherance of a common purpose and but one recovery could properly be allowed against the principals. City of Ft. Worth et al. v. Williams, 55 Tex. Civ. App. 289, 119 S. W. 137; Hall v. Jackson, 3 Tex. 305; Pinchain v. Collard, 13 Tex. 333.

The appellants Duke Carver and Massachusetts Bonding & Insurance Company should have been given judgment non obstante vere-dicto. A constable is not liable for the unauthorized and unratified' acts of his deputies, even though they be official acts, and, of course, if Carver was not liable the bonding-company could not be liable. We quote in part from 46 C. J. p. 1045, § 330: “The doctrine of respondeat superior applicable to the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not * * *.” Clough v. Worsham; 32 Tex. Civ. App. 187, 74 S. W. 350. Article 6870, R. S. 1925, provides in effect that sheriffs shall be responsible for the official acts of their deputies, etc., but there is no such provision with, reference to constables.

The holdings we have made on the above assignments of errors render all other assignments immaterial.

For the error pointed out, the judgment is reversed and the cause remanded.