RUSSELL FAGAN d/b/a PACK SNACK & GAMES a/k/a SPANKY'S PLACE,FROM A DISTRICT COURT APPELLANT, v. OF DARRELL JOHNSON, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-01124-CV
RUSSELL FAGAN
d/b/a PACK SNACK & GAMES
a/k/a SPANKY'S PLACE,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
DARRELL JOHNSON,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE LAGARDE
JULY 13, 1989
        Russell Fagan d/b/a Pack Snack and Games a/k/a Spanky's Place (hereinafter Fagan) appeals from a $358,774.33 judgment FN:1 entered on the jury's verdict in favor of Darrell Johnson for personal injuries Johnson received from being shot by Fagan's employee, L.C. Ware. Fagan was held liable on the theory of respondeat superior, based on the jury's finding that Ware was acting in the course of his employment when he shot Johnson.
        In four points of error, Fagan asserts that: (1) there was no evidence and, alternatively, insufficient evidence to support the jury's finding that Ware was employed by Fagan at the time he assaulted Johnson; and (2) there was no evidence and, alternatively, insufficient evidence to support the jury's finding that Ware was acting in the course of his employment at the time of the assault. We disagree with all four points; consequently, we affirm the trial court's judgment.
        The record in this case shows that Johnson and two friends entered Pack Snack and Games, a video arcade, at approximately 10:30 p.m. Inside, the video arcade contained about twenty different video games and a counter where food was served. Johnson saw Ware, the manager, in the back of the store behind the counter. Ware's duties included making change, selling ice cream and potato chips, and cooking hamburgers. At the time that Johnson entered Pack Snack and Games, Ware was the only employee in the store. Derrick Wade, one of Johnson's friends, testified that on four prior occasions he had been to Pack Snack and Games and that Wade was the sole employee on each occasion.
        After entering, Johnson and his two friends waited in the "Pac Man" line immediately behind two men and two women. While they were waiting, the "two men" FN:2 were "touching on" the girls. The girls asked Ware to make them stop. Ware came over and asked Johnson to keep the two men from "touching" the girls. Johnson declined Ware's request. Ware then walked back to the counter, reached behind it, and pulled out a gun. There is some testimony that he first hit Johnson on the head with the gun. Johnson, however, testified that Ware fired one shot into the floor and then shot him.
        After shooting Johnson, Ware immediately locked the door, walked back behind the counter, and called someone named Russell. Ware told Russell that he had taken Johnson's gun away from him and had shot him with it. When the police arrived, they took Ware's gun, handcuffed him, and took him away. An ambulance arrived at about the same time as the police; the paramedics placed Johnson on a stretcher and took him to Parkland Hospital where he underwent surgery. The doctors were unable to remove the bullet that had lodged close to Johnson's spine; as a result of the shooting, Johnson suffered serious permanent injury. With these facts in mind, we will now address Fagan's four points of error.
I. Ware was Fagan's Employee
        In his first two points of error, Fagan claims that the evidence was legally and factually insufficient to support the jury's finding that Ware was his employee at the time Ware assaulted Johnson. Before specifically addressing the factual and legal sufficiency of the evidence, however, we must consider Fagan's failure to file a verified denial that he was doing business as Pack Snack and Games.
 
A. Fagan's Failure to File a Verified Denial
        In Plaintiff's First Amended Petition, Johnson asserted, in pertinent part:
        Now comes Darrell Johnson, hereinafter called Plaintiff, complaining of Russell Fagan d/b/a Pack Snack and Games . . . . That at all times mentioned herein, defendant owned and operated a gameroom located at 3709 Simpson Stuart Road, Dallas, Dallas County, Texas and known as PACK SNACK AND GAMES. . . .
Where the plaintiff's pleadings allege that a named individual defendant was doing business as a specific company and where the individual fails to file a verified denial of the allegation, the matter is not put in issue. Condry v. Mantooth, 460 S.W.2d 513, 516 (Tex. Civ. App.--Houston [1st Dist.] 1970, no writ); TEX. R. CIV. P. 93(14); see also Rhodes v. City of Austin, 584 S.W.2d 917, 924 (Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.). Because Fagan was sued as "doing business as" Pack Snack and Games and failed to deny that he was doing business under that name, Fagan was, for purposes of this action, one and the same as the business entity known as Pack Snack and Games. Rhodes, 584 S.W.2d at 924-25; see also Condry, 460 S.W.2d at 515. In other words, because Fagan failed to file a verified denial that he was doing business as Pack Snack and Games, Johnson only had to prove that Ware was an employee of Pack Snack and Games and not an employee of Russell Fagan individually. See Rhodes, 584 S.W.2d at 924-25. With this in mind, we now address Fagan's factual and legal sufficiency claims.
B. Factual Sufficiency
        Although Fagan has incorrectly styled his point of error as an "against the great weight and preponderance of the evidence" attack, we shall consider it as raising a factual sufficiency point. FN:3 In reviewing factual sufficiency, we must consider all of the relevant evidence in the record; we may set aside the verdict only if the evidence is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We are not a fact finder and may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
        The evidence clearly reflects that Ware was in charge of Pack Snack and Games on the night the assault occurred. He was the sole employee in the store on that occasion, and, on at least four other occasions, he had been the sole employee in the store. Ware was behind the counter when Johnson and his friends entered; Ware made change, sold ice cream and potato chips, and cooked hamburgers. Ware's actions demonstrate that he knew that there was a gun behind the counter, and he also had keys to the door.
        Based on these facts, we cannot conclude that the jury's finding that Ware was Fagan's (i.e., Pack Snack and Games's) employee was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
 
C. Legal Sufficiency
        When reviewing a "no evidence" challenge, we must consider only the evidence and reasonable inferences drawn therefrom, which, when viewed in their most favorable light, support the jury verdict; we must disregard all evidence and inferences to the contrary. See Stafford v Stafford, 726 S.W.2d 14, 16 (Tex. 1987). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. See id. If the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact, it amounts to more than a scintilla of evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We hold that, based on the facts set out above, there is more than a scintilla of evidence to support the jury's finding that Ware was Fagan's (i.e., Pack Snack and Games's) employee at the time he assaulted Johnson.
        Moreover, a presumption arises that every person found performing the work of another is in the employment of the person whose work is being done. Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836, 845 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). Once the presumption is raised, the defendant has the burden of proof to escape liability by establishing that the workman was an independent contractor. Id.; Eagle Trucking Co. v. Texas Bitulithic Co., 590 S.W.2d 200, 212 (Tex. Civ. App.--Tyler 1979), aff'd in part and rev'd in part on other grounds, 612 S.W.2d 503 (Tex. 1981). Johnson offered evidence showing that Ware was performing work for Fagan (i.e., Pack Snack and Games), and Fagan offered absolutely no evidence that Ware was an independent contractor. For all of these reasons, we overrule Fagan's first two points of error.
II. Course of Employment
        In his third and fourth points of error, Fagan claims that the evidence was factually and legally insufficient to support the jury's finding that Ware was acting in the course of his employment at the time he assaulted Johnson. We disagree.
        Ordinarily, it is not within the course of a servant's employment to commit an assault on a third person. Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 407 (Tex. App.--Corpus Christi 1987, writ denied); see Texas & Pac. Ry. v. Hagenloh, 151 Tex. 191, , 247 S.W.2d 236, 239 (Tex. 1952). However, it is well established in Texas that an employer is liable for the willful and malicious acts of its employee when done within the course of his employment. Country Roads, Inc. v. Witt, 737 S.W.2d 362, 364 (Tex. App.--Houston [14th Dist.] 1987, no writ); see also Houston Transit Co. v. Felder, 146 Tex. 428, , 208 S.W.2d 880, 881 (1948). Under this doctrine, liability is imputed to the employer for any act connected with performance of the employee's duties or arising from those duties. Country Roads, 737 S.W.2d at 364; see also Houston Transit, 208 S.W.2d at 881. In the context of these rules, we must determine if the evidence was factually and legally sufficient to show that Ware was acting within the course of his employment.
Factual and Legal Sufficiency
        We now apply the same standards for factual and legal sufficiency, as previously set forth, to Fagan's third and fourth points of error.
        Ware was acting as the manager of Pack Snack and Games on the night of the assault. He was the sole employee in the store, and had been the sole employee in the store on at least four other occasions. Ware attempted to keep two men from "touching on" two women in the video arcade. He knew where the gun was kept, and did not hesitate to retrieve and fire the weapon. He also had the keys to the arcade, and, after shooting Johnson, Ware locked the door and secured the premises. A rational trier of fact could readily infer that it was part of Ware's job to maintain order and provide security.
        Whether Ware was authorized to keep a gun on the premises and the circumstances under which he was authorized to use it would be matters within Fagan's direct knowledge. Fagan did not testify. The fact finder was authorized to take into consideration the fact that Fagan did not testify, "not only as strengthening the probative force of the testimony offered to establish the issue, but as of itself clothed with some probative force." State v. Gray, 141 Tex. 604, , 175 S.W.2d 224, 226 (1943); Pullman Co. v. Cox, 56 Tex. Civ. App. 327, 120 S.W. 1058, 1060 (1909, no writ); see, e.g., H. E. Butt Grocery Co. v. Bruner, 530 S.W.2d 340, 343-44 (Tex. Civ. App.--Waco 1975, writ dism'd). The failure of Fagan to testify justifies the inference that he refrained because the truth, if made to appear, would not have strengthened his case. Jeter v. State, 171 S.W.2d 192, 194 (Tex. Civ. App.--Eastland 1943, writ ref'd w.o.m.); see, e.g., Continental/Moss-Gordin, Inc. v. Martinez, 480 S.W.2d 800, 804 (Tex. Civ. App.--San Antonio 1972, no writ). In light of these facts, we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. There is clearly more than a scintilla of evidence to support the jury's finding. We overrule Fagan's third and fourth points of error and affirm the trial court's judgment.
                                                          
                                                           
                                                  SUE LAGARDE
                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01124.F
 
 
FN:1 The judgment also awarded 10% per annum post-judgment interest from May 14, 1987 until paid.
FN:2 It is not clear from the record whether the two men were Johnson's friends or the other two men ahead of them in line.
FN:3 When an appellant challenges an adverse finding for which he did not have the burden of proof, he should style his factual sufficiency point as an "insufficient evidence" attack. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX. B.J. 439, 441 (1983).
File Date[01-02-89]
File Name[871124F]