                                  NO. 07-02-0472-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                  MARCH 12, 2004
                            __________________________

                    RANDALL GARRETT and KATHY GARRETT,

                                                              Appellants

                                            v.

                GREAT WESTERN DISTRIBUTING CO. of AMARILLO,
             d/b/a COORS DISTRIBUTING, a/k/a COORS OF AMARILLO,

                                                     Appellee
                       _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 90,309-E; HON. JOHN T. FORBIS, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

      Randall Garrett and his wife Kathy Garrett (the Garretts) appeal from a final

summary judgment denying them recovery against Great Western Distributing Co., d/b/a

Coors Distributing, a/k/a Coors of Amarillo (Great Western). The Garretts sued Great

Western, Scott Riley, Brian Williams, Douglas Dodson and others to redress injuries

resulting from a fight between Randall, Riley, Williams, and Dodson. The fight occurred on

a Friday night in a local bar after Riley allegedly made a comment about or directed to
Kathy Garrett. Randall objected to the comment, and the fight ensued. Riley, Williams and

Dodson worked for Great Western at the time and had worn company uniforms and driven

company cars to the bar.

       Two issues are before us for consideration. Each involves whether the trial court

erred in granting Great Western’s amended no-evidence motion for summary judgment.

The Garretts believe that it did because their “summary judgment proof raise[d] a fact issue

on every element of their claims” and Great Western “owed a duty to the Garretts.” We

affirm the judgment of the trial court.

       Background

       The Garretts state in their appellate brief that despite the numerous allegations of

negligence averred in their pleadings, “[w]hen considered globally, two fundamental claims

are asserted[.]” They consist of Great Western’s liability to them based upon 1) “imputed

liability for the wrongful acts of its employees” and 2) the company’s “independent

negligence for failing to supervise or control its employees.” We adopt the Garretts’

categorization of their claims for purposes of resolving this appeal.

       Standard of Review

       As previously indicated, the summary judgment upon which the trial court acted was

one of no evidence. That is, Great Western contended the Garretts had no evidence to

support any of their claims. Consequently, we assess the legitimacy of the trial court’s

decision via the standard of review described in Kelly v. Demoss Owners Assoc., 71

S.W.3d 419, 423 (Tex. App.–Amarillo 2002, no pet.). That standard obligates us to first

determine the elements of the claim placed in issue by the movant. See TEX . R. CIV . P.

166a(i) (requiring the movant to specify the elements of the claim as to which there is no


                                             2
evidence). Then, we must ascertain whether the non-movant (i.e. the Garretts) presented

sufficient evidence to prove the existence of each element. Furthermore, the quantum of

evidence presented must be more than a scintilla, and it rises to that level if it enables

reasonable and fair-minded people to disagree about whether the element was proven.

Kelly v. Demoss Owners Assoc., 71 S.W.3d at 423. Finally, in deciding whether the non-

movant carried its burden, we consider all the evidence of record in the light most favorable

to the non-movant and disregard that which may be disfavorable. Id.

       First Claim – Imputed Liability

       The Garretts pled that liability for their injuries should be imputed to Great Western

under the theories of respondeat superior and vice-principal. We address the former

allegation first.

       Course and Scope

       An employer is liable, vicariously, for the acts of its servants committed in the course

and scope of their employment. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex.

1999). And, though they may, assaults seldom fall within that realm. Green v. Jackson,

674 S.W.2d 395, 398 (Tex. App.–Amarillo 1984, writ ref’d n.r.e.). This may be because the

authority granted an employee does not ordinarily include the power to attack someone.

Texas & P. Ry Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952); Wrenn v.

G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 494 (Tex. App.–Fort Worth 2002, no pet.); Green

v. Jackson, 674 S.W.2d at 398.        Indeed, as recognized by our own Supreme Court,

“[u]sually assault is the expression of personal animosity and is not for the purpose of

carrying out the master’s business.” Texas & P. Ry Co. v. Hagenloh, 247 S.W.2d at 239;

Kelly v. Stone, 898 S.W.2d 924, 927 (Tex. App.–Eastland 1995, writ denied); Green v.


                                              3
Jackson, 674 S.W.2d at 398. So, to impute responsibility for such an intentional act to an

employer, it is encumbent upon the plaintiff to prove that the assault was closely connected

with the servant’s authorized duties, GTE Southwest, Inc. v. Bruce, 998 S.W.2d at 617-18;

Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 881-82 (1948), and not the

result of personal animus. GTE Southwest, Inc. v. Bruce, 998 S.W.2d at 617-18; Texas &

P. Ry Co. v. Hagenloh, 247 S.W.2d at 239-41. In other words, it must be shown that the

act arose directly out of and was done in the prosecution of the business for which the

servant was hired. Texas & P. Ry Co. v. Hagenloh, 247 S.W.2d at 239-40; Wrenn v.

G.A.T.X. Logistics, Inc., 73 S.W.3d at 493-94; Green v. Jackson, 674 S.W.2d at 398.

       More importantly, we take care to highlight the concept of proximity implicit within

this rule. It is not enough that the tort can simply be traced back to the performance of

one’s duties. Texas & P. Ry Co. v. Hagenloh, 247 S.W.2d at 240-41. As recognized by

our Supreme Court in Hagenloh, if the connection is too remote then the employer is not

responsible. Id. Furthermore, how proximate this link between the job and tort must be is

exemplified in Houston Transit. There, the court found the link to be sufficiently close. And,

in arriving at that conclusion, it observed that “[w]hether Goodson [the employee of Houston

Transit] was acting within the scope of his employment on the occasion in question

depends in large measure upon why he went to Felder's car after the collision.” Houston

Transit Co. v. Felder, 208 S.W.2d at 882. Goodson was driving a bus when it collided with

a vehicle driven by Felder. A fight erupted between the two when Goodson exited the bus

and approached Felder. Why Goodson approached the car, according to the court, “was

something to which Felder could not testify, since it was peculiarly within Goodson's

knowledge[.]” Id. Nevertheless, Goodson “testified positively that his purpose was to


                                              4
secure information for his employer.” So, what we have in Houston Transit is evidence of

1) a collision 2) followed by Goodson approaching Felder to obtain information for his

employer about the accident “as [Goodson admitted] it was his duty to do” and 3) Goodson

striking Felder immediately upon encountering him. Id. at 881. Simply put, Goodson’s

appearance in front of Felder immediately before the fight broke out was due to his

performance of an employment duty. And, this was the specific basis on which the

Supreme Court distinguished the circumstances in Texas & P. Ry Co. v. Hagenloh (wherein

liability was not imputed to the master) from Houston Transit.

       The holding in Houston Transit, according to the Supreme Court in Hagenloh, was

“based upon the evidence that Goodson, in keeping with his duties, went immediately after

the collision to Felder’s automobile to get information, and that while he was thus about his

master’s business and before he had finished the mission, he committed the assault.”

Texas & P. Ry Co. v. Hagenloh, 247 S.W.2d at 241 (Emphasis supplied). In contrast, while

the employee in Hagenloh first approached his victim “to talk about the baggage incident,”

per his employment duties, the words he uttered showed that his “intention was to abuse

and revile respondent rather than to obtain information. . . . ” Id. at 240-41. Furthermore,

“[t]he encounter was, or immediately became, personal, and . . . [t]he words and the assault

that followed were the expression of contempt and animosity, and they were not in

pursuance of the employer’s business.” Id. So, as can be seen from both Houston Transit

and Hagenloh, the circumstances and mens rea of the employee existent immediately

before the assault occurs are pivotal, if not dispositive. See Texas & P. Ry Co. v.

Hagenloh, 247 S.W.2d at 241 (stating that the rule is that “‘when the servant turns aside,

for however short a time, from the prosecution of the master’s work to engage in an affair


                                             5
wholly his own, he ceases to act for the master, and the responsibility for that which he

does . . . is upon him alone’”). With that said, we turn to the case before us.

Appearing of record is evidence that 1) Riley, Williams, and Dodson wore their company

uniforms and drove their company cars to the bar, 2) Great Western had a policy dictating

that its cars were only to be used for company business and uniforms were to be worn only

while working, 3) employees were on the job, so to speak, until they returned their car, 4)

Riley, Williams, and Dodson bought themselves drinks at the bar, 5) Great Western

employees who socialized at a bar that acquired product from Great Western fostered

Great Western’s image and constituted “good business,” 6) Great Western employees were

to always ask themselves if what they were doing was good for the company, 7) another

Great Western employee at the bar remarked, after the fight, that “they weren’t

representing Coors very well,” and 8) Great Western disciplined its employees for engaging

in the fight. Assuming arguendo that the foregoing is more than a scintilla of evidence from

which a reasonable factfinder could infer that Riley, Williams, and Dodson appeared at the

bar to pursue their employer’s business, it is no evidence that Great Western authorized

their use of force in any way while doing so. Nor is it any evidence that the assault was

closely connected to or arose immediately from the pursuit of those duties. Indeed, the

Garretts refer us to nothing of record purporting to illustrate how and why the fight erupted.

They say nothing in their brief about what Randall and the employees of Great Western

were doing immediately before blows were thrown even though those circumstances are

pivotal.

       However, perusal of the undisputed summary judgment evidence before us

discloses that one or more of the employees were playing pool and that they were


                                              6
“‘pointing” and “hiding” in a manner which indicated to Randall that they “were going to start

trouble.” Furthermore, according to Randall, Riley uttered some comment, in response to

which (and while the two were within feet of each other) Randall said, “You ain’t going to

talk to my wife that way[.]” Immediately thereafter, the first blow was struck by a Great

Western employee. What the substance of Riley’s comment was goes unmentioned as

does whether it related to the business of Great Western. Nonetheless, this evidence of

what happened immediately before the brawl commenced does not permit one to

reasonably infer that Riley, Williams, and Dodson were pursuing the business of Great

Western at the time or intending to pursue it. Rather, it indicates that the group engaged

in the fight out of some animosity developing between Riley and the Garretts. Given this,

we cannot say that the Garretts presented more than a scintilla of evidence that the assault

occurred while Riley, Williams, and Dodson were within the course and scope of their

employment. And, there being no evidence that they were acting within the scope of their

employment, the trial court did not err in granting Great Western summary judgment on this

issue.

         Second Claim – Vice-Principal

         The Garretts proffered a second ground through which they sought to impute liability

to Great Western. It involved the theory of vice-principal. Furthermore, Shellia Dodson,

who was with Riley, Williams, and Dodson at the bar, purportedly held such a position

because she was the executive secretary to Great Western’s principal owner. As such, she

could “write” and “sign-off” on certain checks, acknowledge the receipt of delivered items,




                                              7
order office supplies, and had the authority to tell Riley, Williams, and Dodson what to do.1



        To be a vice-principal, the employee must enjoy a measure of authority sufficient to

enable one to consider his acts as those of the company. Fort Worth Elevators Co. v.

Russell, 123 Tex. 128, 70 S.W.2d 397, 406 (1934), overruled on other grounds by Wright

v. Gifford - Hill & Co., 725 S.W.2d 712 (Tex. 1987), (characterizing the acts of a vice-

principal as the “very acts of the corporation itself”). The term encompasses four classes

of agents: 1) corporate officers; 2) those with authority to employ, direct, and discharge

employees; 3) those engaged in the performance of non-delegable or absolute duties of

the employer; and 4) those to whom an employer has confided the management of the

whole business or a department or division of the business. Hammerly Oaks, Inc. v.

Edwards, 958 S.W.2d 387, 391 (Tex. 1997); Fort Worth Elevators Co. v. Russell, 70

S.W.2d at 406. And, that one may fall within any of the foregoing categories does not

alone permit attribution of the employee’s act to the employer for it must still be shown that

the tortuous act was encompassed within the duties assigned. See Fort Worth Elevators

Co. v. Russell, 70 S.W.2d at 407 (stating that if one is a vice-principal when performing

negligent acts he too is one when acting grossly negligent, “provided, of course, the work

in hand is within the duties delegated to him”).

        Returning to the record before us, we find nothing suggesting that Shellia held the

post of corporate officer. Nor does any evidence of record illustrate that she performed



        1
           W e say that sh e had the ability to “sign-off on” certain che cks because the extent of Sh ellia’s
auth ority to draft against Great Western’s bank account was not developed. Additionally, the record discloses
that she could not reimburse employees for their business expenses. So, there was some limitation to her
ability.

                                                      8
some non-delegable or absolute duty on behalf of Great Western. So, neither of those two

classes can be used to establish her as a vice-principal.

         Nor does the possibility that she had some authority to direct the conduct of Riley,

Williams, or Dodson bestow upon her the requisite status. Having some supervisory

authority over others without the ability to hire and fire is not enough. Again, Hammerly and

Fort Worth Elevators describes the authority as the power to “employ, direct, and

discharge.” Hammerly Oaks, Inc. v. Edwards, 959 S.W.2d at 391 (Emphasis supplied);

Fort Worth Elevators Co. v. Russell, 70 S.W.2d at 406; accord Magnolia Petroleum Co. v.

Booth, 105 S.W.2d 356, 358 (Tex. Civ. App.–Beaumont 1937, writ ref’d) (holding that Terry,

who was a crew leader, was not a vice-principal because he had neither general

supervisory power over the entire department nor the power to hire and fire anyone in his

crew).

         Next, combining this ability to simply tell the three individuals what to do with her

permission to write or “sign off on” certain checks, to buy general office supplies, and to

sign for deliveries is still insufficient. Their totality does not reasonably permit one to infer

that Great Western confided the management of the whole business or a department or

division thereof to her. This is so because nothing indicates that she had any general

supervisory control over Great Western or any division or department thereof. Nothing

indicates that she makes or has the power to make decisions about the daily operation of

Great Western or any division or department thereof. Nothing illustrates that she can hire

or fire anyone. And, to the extent that she can do certain things like tell some employees

what to do, sign checks, and the like, nothing illustrates that she can do so autonomously

or whether she must first receive direction from superiors.


                                               9
        What is not present in the record renders deficient that which is. Things exist in

context. Out of context, evidence may suggest one thing while in context it may show

something quite different. From what we are told here, Shellia may have some extensive

management authority or the scope of her tasks may be no more than those of a clerk

operating at the behest of her supervisors. From the sparse record before us, we can only

guess at where in the spectrum she lies. So too must we conclude that one viewing the

record in a light most favorable to the Garretts cannot reasonably infer that Great Western

confided in her the management of either the whole business or a department or division

of it. To paraphrase the Supreme Court in Hammerly Oaks, the “evidence on which [the

Garretts] rel[y] is ‘meager circumstantial evidence’ which could give rise to any number of

inferences, none more probable than another.” Hammerly Oaks, Inc. v. Edwards, 958

S.W.2d at 392, quoting Blount v. Borders, Inc., 910 S.W.2d 931 (Tex. 1995). It constitutes

no evidence from which a reasonable factfinder can infer an ultimate fact, id., and,

therefore, the trial court did not err in granting summary judgment on the issue of vice-

principal.

        Claim Three – Negligence

        The last claim we address concerns Great Western’s duty to supervise or control its

employees.2 According to the Garretts, they presented sufficient evidence on each element

of the chose-in-action to avoid summary judgment. We disagree.

        Texas does recognize a cause of action involving the negligent supervision of one’s

employees. Furthermore, successfully prosecuting it is not dependent upon a finding that



        2
         Although the G arretts alleged a number of independent acts of negligence in the ir petition, the only
one they brief on appeal is the failure of Great Western to supervise or control its employees.

                                                     10
the employee was acting within the course and scope of his employment. Wrenn v.

G.A.T.X. Logistics, Inc., 73 S.W.3d at 496. This is so because the basis for responsibility

lies in the master’s own negligence in omitting to supervise an incompetent employee

whom the master knows or should have known through the exercise of reasonable care

was incompetent and thereby created an unreasonable risk of harm to others. Peek v.

Equipment Services, Inc., 906 S.W.2d 529, 534 (Tex. App.–San Antonio, 1995, no writ)

(involving a claim of negligent hiring, retaining and supervision); see also Dailey v.

Albertson’s, Inc., 83 S.W.3d 222, 227-28 (Tex. App.–El Paso 2002, no pet.) (absolving the

employer of liability for negligence because no evidence illustrated that it knew or should

have known of the employee’s violent tendencies); Wrenn v. G.A.T.X. Logistics, Inc., 73

S.W.3d at 500 (holding that a fact issue precluded summary judgment because there was

some evidence that the employee was violent and engaged in violent acts while on duty,

which conduct was known to at least one supervisor).

       Here, there is evidence indicating that Shellia knew that fights could occur in a bar.

So too does the record illustrate that at least two other individuals who were employed by

Great Western had become embroiled in such a fight. The circumstances surrounding

those brawls and when they occurred go undeveloped, however. Nevertheless, no

evidence appears of record suggesting that Riley, Williams, or Dodson themselves

exhibited violent or aggressive tendencies or engaged in fights at any time before the

incident in question. Nor is there evidence of record suggesting that anyone at Great

Western knew that any of the three had violent propensities before the bar incident. And,

this was fatal for, as illustrated in Peek, Dailey, and Wrenn, the incompetency (or in this

case, the propensity for violence) of the particular employee must or should have


                                            11
reasonably been known by the employer. Consequently, the trial court did not err in

granting summary judgment on this issue either.

        Accordingly, we overrule each issue of the Garretts and affirm the judgment of the

trial court.



                                                 Brian Quinn
                                                   Justice




                                            12
