Ada Oil Co. v. Dillaberry

• Decision Date: 09 April 1969
• Docket Number: No. 204,204
• Parties: ADA OIL COMPANY et al., Appellants, v. Richard A. DILLABERRY, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 902

440 S.W.2d 902

ADA OIL COMPANY et al., Appellants, v. Richard A. DILLABERRY, Appellee.

No. 204.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

April 9, 1969.

Rehearing Denied May 7, 1969.

Ellis A. Oualline, Jr., Conroe, Ernest C. Hurst, John H. Caldwell, Caldwell & Hurst, Houston, for appellants.

Wellborn, Britt & Kelley, Alvin, H. Cecil Baker, Rosenberg, W. G. Walley, Jr., Beaumont, for appellee.

BARRON, Justice.

This is a plea of privilege case in which the district court of Brazoria County, without the intervention of a jury, rendered judgment overruling the respective pleas of privilege of the defendants, Ada Oil Company and Edwin E. Teston, of Harris County, Texas, and Elmer Weisinger, of Montgomery County, Texas, to be sued in the respective counties of their residence. The pleas of privilege were controverted by Richard A. Dillaberry, plaintiff, and the above defendants have duly perfected their appeals to this Court . Plaintiff relies upon Subdivisions 4 and 9 of Article 1995, Vernon's Ann.Tex.Civ.St., to maintain venue of this malicious prosecution action in Brazoria County, Texas. The named defendants in the action were Ada Oil Company and Phillips Petroleum Company, both Delaware corporations, Elmer Weisinger, Edwin E. Teston, B. C. Murray, Frank Bell, Dave Clark, Larry Evans, Bert Patten, Joe W. Meaders, Warren Hightower and George W. Beebe, Jr. At the conclusion of the hearing herein, plaintiff took non-suits against Phillips Petroleum Company, B. C. Murray, Frank Bell, Dave Clark, Larry Evans and Bert Patten, leaving Ada Oil Company, Teston, Weisinger, Meaders, Hightower and Beebe as defendants. Meaders, Hightower and Beebe are resident defendants of Brazoria County, Texas, and they, of course, did not file pleas of privilege.

Ada Oil Company, Teston and Weisinger, defendants, are appellants herein, and Dillaberry, the plaintiff, is appellee.

Dillaberry alleges in his petition that he was unlawfully and maliciously arrested and jailed on complaints of Weisinger, Meaders and Hightower without probable cause for the alleged offense of presentation of a credit card with intent to defraud in violation of Art. 1555b, Vernon's Ann. Penal Code, and that he was thereby maliciously deprived of his liberty for more than seven months. He seeks the sum of $750,000.00 actual damages, and alleges exemplary damages in the sum of $750,000.00. The original arrest is alleged to have occurred at Conroe, Montgomery County, Texas, on July 17, 1966. Plaintiff claims that all of the defendants unlawfully and maliciously conspired together to cause and did cause the alleged malicious prosecutions complained of.

Plaintiff was a former lessee dealer of a Phillips 66 service station owned by Ada Oil Company, plaintiff having operated such service station under a lease agreement with Ada during the period from July 15, 1965 to about July 8, 1966, at which time the lease arrangement was mutually terminated by the parties. At various times prior to the period during which he operated the Ada station as the lessee dealer thereof, plaintiff had operated, as lessee dealer, a Mobil station, which later changed to Tidewater, for one year, and a Gulf station in Houston, as lessee dealer thereof, from 1963 to 1965. Plaintiff admittedly had had considerable experience in the operation of service stations and was familiar with the rules and regulations governing the honoring of credit cards by service stations. While plaintiff was operating the Ada station, he was issued two Phillips Petroleum Company credit cards, and he also possessed at all material times Union Oil Company and Shell Oil Company credit cards. Although admittedly he never used his Phillips credit card at any time while operating the Ada station, during the period from July 9, 1966 (a day or two after he checked out of the Phillips 66 station), through July 16, 1966, plaintiff purchased on his Phillips credit card a total of 26 tires, 2 batteries, 4 shock absorbers and gasoline at a total credit charge of about $1,000.00. Such purchases were made by using his Phillips credit card at various Phillip 66 service stations in La Porte, Conroe, Houston, Pasadena, Old Ocean, Freeport, West Columbia and Rosenberg, Texas. During such time plaintiff made no purchases on any credit card other than his Phillips card.

When plaintiff checked out of the Phillips 66 station about July 7, 1966, there was a dispute concerning his accounts. Although the record is not entirely clear, plaintiff was entitled to a credit of $1,642.14 for his inventory transferred to Ada at the time, but he owed Ada about $3,339.30 for various things, including chargebacks on various credit purchases and unauthorized sales made by Dillaberry. The unauthorized sale of tires (failure to mount the tires as required), and advancement of cash to certain customers on the credit card were among the the repeated violations of the terms of the credit arrangements. When the sales were in violation of Phillips' credit terms, the accounts would be charged back by Phillips to Ada, who in turn would attempt to collect from the dealer who made the sales. At least four such unauthorized series of sales by Dillaberry, together with other items, caused him to owe Ada about $1,697.16 at the time he checked out of the station. While the record is not clear as to the exact amount allegedly owed by Dillaberry, he did acknowledge the debt or a certain portion of it. He stated, however, that he had no money to pay it, but later stated that he had a 'trust fund' in California in the amount of $1,200.00. He further stated that he purchased the 26 tires on an installment plan to facilitate the selling of certain automobiles, and that the installment charges were incurred to give him time to pay. He stated also that Ada had 'confiscated' his station, and that it was customary to advance cash and sell tires unmounted to special customers, though the rules were known to be otherwise. He did not, however, show of record that cash was advanced on the credit cards, and he admitted selling many tires unmounted. It is clear that plaintiff was dissatisfied with the ultimate results of the state of his account with Ada, and that his feelings toward Ada were unfriendly.

When Ada Oil Company learned that Dillaberry was purchasing tires, accessories and gasoline at various stations in the area in what it considered to be suddenly excessive amounts, it immediately began an attempt to revoke plaintiff's credit card. On July 12, 1966, David Clark, Division Credit Manager for Ada Oil Company, called R. A. Winter of Phillips Petroleum Company in Kansas City, Missouri and requested that Dillaberry's credit card be cancelled, which Winter did for Phillips on July 12, 1966. Ada Oil Company is a jobber who purchases Phillips products for re-sale. Ada owns its own service stations, which it leases to various operators, and Ada clearly has the right to cancel a credit card so far as any purchase at one of its stations is concerned. Clark signed a notice of cancellation of Dillaberry's credit card, and mailed the letter to Dillaberry's address at Deer Park, Texas, on July 14, 1966. The letter, however, was not received by Dillaberry, though it was sent by registered mail, 'return receipt requested.' There is a note on the envelope showing 'notified, 7--15, Al,' apparently made in compliance with a notice required by postal regulations concerning registered mail, and pertains to a notice to pick up a registered letter. The reason for non-delivery was shown as 'unclaimed' on July 15. Phillips sends out stop credit bulletins on Fridays of each week, and while cancellation of the card by Phillips and Ada was completed on the 12th, and Ada received from Phillips confirmation by the 14th, Dillaberry's card was not on the regular stop credit bulletin of Phillips until July 22, 1966, when it reached the hands of the various service station operators. However, Ada notified their dealers by telephone in Pasadena, Deer Park and south and east Houston areas on July 12th to the 14th that plaintiff's credit card had been cancelled and not to honor it, and Ada warned them of the consequences.

On July 16, 1966, Dillaberry and another man drove into the Phillips 66 station of defendant, Joe W. Meaders, at West Columbia. The man with plaintiff asked if they could buy a couple of tires on a credit card. Meaders agreed to sell if the credit card was a good one, and determining that the card looked to be in order, though it was the 'expiring kind' (the card was to expire on its face at the end of September, 1966), Meaders sold Dillaberry $104.13 worth of tires and a battery on the credit card. The delivery ticket, however, was dated July 15, 1966. He sold the merchandise on a Saturday, and on the following Monday he got notice by mail advising him not to honor such card. Meaders telephoned Teston at Ada Oil Company offices in Houston, and Teston told him that since Meaders did not mount the tires the sale was his personal responsibility. Teston told him that it was a 'hot' credit card and was 'no good.' On Teston's inquiry, Meaders told him he would be willing to file charges, and the two agreed to meet later at the district attorney's office at Angleton to 'see what could be done.' The Brazoria County District Attorney, Honorable Ogden Bass, testified that Meaders, Teston and probably Deputy Sheriff Littleton came into his office, and they had a discussion of the affair conderning plaintiff. Further investigation was required. He accepted the complaint after reviewing it as meeting the standards, though he was concerned about the matter of notice to plaintiff of cancellation of the credit card . Evidence was presented to the District Attorney in a letter to Mr . Littleton, signed by Mr. Teston, the Ada employee, to which letter was attached affidavits of Meaders, Mrs. Beatrice Nesmith, Walter Stone, Jr. and George W. Beebe, Jr., and promising...