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Fisher v. Carrousel Motor Hotel

Citation. 424 S.W.2d 627 (Tex. 1967)
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Brief Fact Summary.

Plaintiff was holding his plate and waiting to be served at a luncheon. The manager of the hotel, Flynn, snatched the plate from plaintiff’s hand and shouted a racial slur at plaintiff. Plaintiff sued the hotel, the manager, and the club where the hotel was located for assault and battery.

Synopsis of Rule of Law.

Actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body as to be customarily regarded as part of the person.


Fisher (Plaintiff) was an employee of NASA. He was at Carrousel Motor Hotel attending a convention. While he was attending this convention they had a buffet lunch, and Fisher grabbed his plate and was standing in line to get his lunch. While he was standing in line and about to be served, the manager of the hotel Flynn came up to him and swatted the plate out of his hand and said a racial slur. Flynn did not actually touch Fisher’s body.


There are two substantive issues:

  1. Whether Flynn’s action constitutes a battery? Specifically, is physical contact necessary for an action to be a battery?
  2. If there is battery, whether the two corporate defendants are liable for exemplary and actual damages for Flynn’s conduct?


  1. Answer to Issue 1: Yes, the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery.
  2. Answer to Issue 2: Yes, the corporate defendants are liable for exemplary and punitive damages for the plaintiff for $900.


Trial court said no battery was committed because no physical contact was made to plaintiff’s body. This Court clarified that there can be a battery without an assault, and that actual physical contact to plaintiff’s body is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. The Court consulted Restatement of Torts 2d, §§ 18 and 19 and stated that “[t]he interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be  sufficient; . . . The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”

In this case, Flynn’s action of intentionally snatching plaintiff’s plate from plaintiff’s hand is clearly an offensive invasion of plaintiff’s person as would be an actual contact with the body. Therefore, the forceful dispossession of plaintiff’s plate in an offensive manner constitute a battery. The trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

The Court next analyzed if the two corporate defendents are liable for exemplary and actual damages for Flynn’s conduct, and the court answered yes. Since the jury found that Flynn was acting within the course and scope of his employment, the Court determined that the applicable rule in Texas regarding determination of principal or master liability is — the liable agent was employed in a managerial capacity and was acting in the scope of employment. This Court eventually reversed the judgment and rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.

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