
    RUCKER v. BARKER.
    (No. 2502.)
    (Supreme Court of Texas.
    Feb. 28, 1917.)
    1. MASTER AND SERVANT t&wkey;305 — INJURIES TO Third Persons — Servant Exceeding Authority.
    If a precinct constable employed by defendant to keep order on the grounds of his medicine show was acting within the general scope of his duties as the defendant’s employé when he arrested plaintiff and ejected him from a tent, defendant was responsible for the constable’s action, although it was in excess of actual instructions.
    [E'd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224.]
    2. Pause Imprisonment <&wkey;31 — Liability op Master — Sufficiency of Evidence.
    In an action against the proprietor of a medicine show for false imprisonment of plaintiff by defendant’s constable, evidence held to warrant a finding that the constable made the arrest because of defendant’s instructions and in his capacity as defendant’s employé and not pursuant to his authority as a peace officer of the precinct.
    [Ed. Note. — Por other cases, see False Imprisonment, Cent. Dig. § 108.]
    3. False Imprisonment @=»4 — Malice.
    Where defendant’s constable unlawfully and violently arrested plaintiff and ejected him -from defendant’s medicine show, malice would be imputed to the constable because of the unlawful nature of the act.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 16.]
    4. False Imprisonment <&wkey;35 — Exemplary Damages — Acts of Agent.
    If defendant proprietor of a medicine show was a party either expressly or tacitly to the violent and unlawful conduct of his constable in arresting and ejecting the plaintiff from the show and causing his imprisonment, a verdict for exemplary damages was warranted.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 112.]
    5. False Imprisonment <@=^31 — Actions — Sufficiency of Evidence.
    In an action against the proprietor of a medicine show for false imprisonment of plaintiff by defendant’s constable, evidence held to justify a finding of tacit participation by the defendant in the constable’s violent and unlawful conduct in arresting plaintiff.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 108.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by A. M. Barker, as next friend of John Dyer, a minor, against H. D. Rucker. From a judgment of the Court of Civil Appeals (151 S. W. 871) affirming a judgment for plaintiff, in the district court, defendant brings error.
    Affirmed.
    O. L. Stribling, of Waco, and W. F. Ramsey, of Dallas, for plaintiff in error. Hamilton & Kibler, of Waco, and J. A. Kibler/of San Francisco, Cal., for defendant in error.
   PHILLIPS, C. J.

The suit was by A. M. Barker, as next friend of John Dyer, a minor, against H. D. Rucker for the recovery of damages for Dyer’s false imprisonment by one J. J. Roberts. Rucker was the proprietor of a medicine show conducted at the time in the city of Waco in a tent. Roberts was a deputy constable of the Justice Precinct, and likewise in the employ of Rucker to preserve order on the show grounds at night. On the night of the occurrence out of which the suit arose, Dyer, who had purchased a reserved seat in the tent, became engaged in an argument with another patron as to which was entitled to the seat he was occupying. Roberts was called. He was directed by Rucker to settle the dispute, or to stop it. He approached Dyer and requested that he vacate the seat, which Dyer refused to do. As to what then occurred the record is in conflict, but according to young Dyer’s testimony, which it was the province of the jury to credit, he was, without cause, dragged by Roberts from his seat and out of the tent, —Roberts being assisted by one Crawford, — ■ was struck in the face, thrown down, and turned over to the police to be locked up for disturbing the peace. At the time Dyer refused Roberts’ request to vacate the seat, Rucker was standing near, in a position to see Dyer and Roberts, and close enough to hear them., According to Roberts, after. Dyer refused to vacate the seat, he turned to Rucker about the matter; and it was then that Rucker told him to stop, or settle, the dispute. Dyer was carried past Rucker in being dragged from the tent, but Rucker made no effort to interfere with the treatment to which he was being subjected by Roberts.

Upon special issues the jury found that Dyer, before the assault and arrest by Roberts, had not been guilty of any conduct calculated to disturb those present in the tent. Also, that Roberts in making the arrest did so under the instructions of Rucker, or while acting within the scope of his duties under Rucker’s employment, and not upon his own volition as a peace officer. A verdict in the plaintiff’s favor for $1,000.00, actual damages, and $250.00, exemplary damages, was returned. The Court of Civil Appeals affirmed the judgment. 151 S. W. 871.

It is urged by the plaintiff in error that there is no evidence sustaining the finding .that Roberts, in making the arrest, was acting under Rucker’s direction, or within the scope of his employment under Rucker; and further, that there is no evidence warranting a finding against Rucker for exemplary damages.

We think both, in the state of the proof, were jury questions. It was not necessary for Rucker to have authorized the specific acts which Roberts committed in his treatment of Dyer in order to be liable in actual damages for Roberts’ conduct. If Roberts at the time was acting within the-general scope of his duties as Rucker’s employé, Rucker was responsible for his action, though it was in excess of Rucker’s actual Instructions. It was a question of fact as to whether Roberts was acting upon his own volition as a peace officer, or as Rucker’s employe. According to Roberts’ own testimony, he took no steps toward the arrest until he had consulted Rucker, and only after Rucker had directed him to stop, or settle, the dispute. This, alone, would warrant the finding that Roberts made the arrest because of Rucker’s instructions and in his capacity as Rucker’s employé.

Under the finding that Dyer had committed no breach of the peace, the arrest was unlawful. The conduct of Roberts was violent and excessive according- to Dyer’s version. Because of the unlawful nature of his act, malice would be imputed to Roberts in its commission. If Rucker was a party, either expressly or tacitly, to the violent and unlawful conduct of Roberts, the verdict for exemplary damages was warranted. It may be inferred from the record that the arrest was made in Rucker’s presence. He saw the treatment to which Dyer was being subjected by Roberts. He had given the original instructions to Roberts. He necessarily knew that such was the manner in which Roberts was executing them. He stood by and made no effort to restrain Roberts. This was proof, under the circumstances, of tacit participation in Roberts’ conduct.

The judgments of the District Court and Court of Civil Appeals are affirmed. 
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