Bass v. Metzger
| Decision Date | 15 June 1978 |
| Docket Number | No. 1245,1245 |
| Citation | 569 S.W.2d 917 |
| Parties | James E. BASS, Jr., Appellant, v. J. Robert METZGER et al., Appellees. |
| Court | Texas Court of Appeals |
This is a malicious prosecution case. James E. Bass, Jr., sued Joe D. Wilson, J. Robert Metzger, United Sales, Inc., Truman Cole and Copi-Rite, Inc. for actual and exemplary damages arising from a charge of felony theft of a copy machine filed against Bass by Wilson. Suit was filed on August 16, 1971. Cole, by special appearance contested the jurisdiction of the trial court and was later dismissed as a party defendant. Trial was to a jury. After a verdict was reached, the trial court set aside some of the jury's findings, and rendered judgment that Bass take nothing against Copi-Rite, but that he recover $10,000.00, as actual damages, against Wilson, Metzger and United Sales, jointly and severally, and $8,500.00 in exemplary damages against Wilson individually. From that judgment, Bass, Metzger and United Sales have perfected appeals. Wilson did not appeal.
On August 11, 1971, the defendant Joe D. Wilson signed a sworn complaint which charged Bass with stealing a certain copy machine on or about July 23, 1971. The complaint was filed on August 12, 1971.
Bass was then arrested, fingerprinted, photographed, and jailed. He was released on bond on the same day that he was arrested. The complaint, pursuant to a motion filed by Mr. Phil Westergren, an Assistant District Attorney of Nueces County, Texas, was dismissed by the Honorable Manuel N. Cantu, Jr., Justice of the Peace, Precinct No. 1, Nueces County, Texas, on August 23, 1971. Bass then filed suit for recovery of damages which he allegedly sustained because of the acts of the above-named defendants.
The jury, in answer to the several issues which bear on the disposition of this case, several of which, as submitted, contained more than one subsection, found:
Special Issue No. 1 - Bass was innocent of the charge
of theft
Special Issue No. 2 - Wilson acted without probable
cause in filing the complaint
against Bass
Special Issue No. 3 - A criminal prosecution for theft
against Bass was caused to be
commenced by or with the aid
or cooperation of 1) Joe D. Wilson
2) J. Robert Metzger, and
3) United Sales, Inc
Special Issue No. 4 - Wilson and United Sales, Inc., "in
causing, or aiding, or cooperating
in the filing of the criminal complaint"
acted with malice; Metzger
acted without malice;
Special Issue No. 6 - Wilson was an employee of 1)
Metzger, and 2) United Sales, Inc.;
Special Issue No. 6A - Neither Metzger nor United Sales,
Inc., were reckless in having Wilson
in their employ on August 12,
1971;
Special Issue No. 7 - Wilson was acting within the scope
of his employment by 1) Metzger
and 2) United Sales, Inc., at the
time of the complaint was filed;
Special Issue No. 8 - Wilson, in filing the complaint,
was the agent of: 1) Metzger and
2) United Sales, Inc.;
Special Issue No. 8A - Wilson "had authority, express or
implied" from 1) Metzger and
2) United Sales, Inc. to file the
complaint;
Special Issue No. 9 - Wilson "was employed in a managerial
capacity" by 1) Metzger and
2) United Sales, Inc., at the time
he filed the complaint;
Special Issue No. 10 - Neither Metzger nor United Sales,
Inc., "ratified the filing of the
charge of theft against Bass";
Special Issue No. 11 - Bass sustained actual damages in
the amount of $10,000.00;
Special Issue No. 12 - Bass was entitled to recover
exemplary damages: 1) $8,500.00
against Wilson; 2) $12,500.00
against Metzger; and 3) $10,000.00
against United Sales, Inc.
Copi-Rite, Inc. was absolved of all liability by the jury.
Bass filed a motion that judgment be rendered on the verdict. The trial court, in response to motions filed by Metzger and United Sales to disregard certain jury findings, set aside the jury's answer to Special Issue No. 4 wherein it was found that United Sales, Inc. "acted with malice", and further set aside the jury's answer to Special Issue No. 12(2) and (3), wherein it was found that Bass should recover, as exemplary damages, $12,500.00 from Metzger, and $10,000.00 from United Sales.
Bass, in his attack on the judgment in point 1, complains that the trial court erred in not awarding him judgment against Wilson, Metzger and United Sales, jointly and severally, in the amount of $31,000.00 for exemplary damages. He contends, in the alternative, by points 2-5, that it was error to disregard and set aside the jury's answer to Special Issue No. 12(2) and (3), and in not rendering judgment for him against Metzger in the amount of $12,500.00 for exemplary damages, and against United Sales in the amount of $10,000.00 for exemplary damages, as found by the jury. In point 6, it is asserted that the trial court erred in disregarding and setting aside the jury's answer to Special Issue No. 4(3) wherein it was found that United Sales "acted with malice".
Metzger and United Sales complain of the judgment also. They, by way of cross points, say that the trial court erred in rendering judgment against them for the reasons that there was no evidence to support the jury's answers to Special Issues 2, 3, and 4, and that such findings are not supported by factually sufficient evidence. Metzger, in a cross point, also contends that there was no evidence to support the jury's answers to Special Issues 6, 7, 8, 8A and 9, and that such findings are not supported by factually sufficient evidence.
The copy machine with which Bass was charged with stealing was owned by United Sales. The machine was placed in the possession of Flato Bros., in Corpus Christi, Texas, by Bass in March, 1970, under a rental-sales agreement. It remained in the actual possession of Flato's until about July 20, 1971, when it was picked up by Bass and removed from Flato's place of business.
Metzger, at all times pertinent to this case, lived in Plainview, Texas. In late December, 1970, Bass was employed by United Sales as its general manager of United Sales' business, located on Water Street, Corpus Christi, Texas. At that time, Gerald Lee, who previously had been a service manager for United Sales, was acting as manager to run its daily business affairs. Bass was to take over the general operations of the business.
At a March 7, 1971, meeting between Bass, Lee and Metzger, Bass and Lee expressed their dissatisfaction with certain matters pertaining to the business. There is evidence that Bass informed Metzger at the meeting that he and Lee intended to go into business for themselves. As a result, it was agreed that the inventory business then owned by United Sales be liquidated. Bass was to be in charge of the liquidation.
Lee terminated his relationship with United Sales, and he and Bass began to operate a partnership copy machine business known as the "Bass and Lee Company". The Bass and Lee inventory was kept separately at a location on North Mesquite Street, Corpus Christi, Texas.
After the March 7, 1971, meeting, Bass, who had previously placed the copy machine in question with Flato, went to Flato's office and discussed the matter of their buying the machine outright with Mr. Louis Schmidt, Flato's representative. Bass was advised that Flato desired to continue using the machine under the agreement, rather than purchase it.
On June 24, 1971, Donald B. Brown, who owned 50% Of the stock in United Sales, mailed a letter to United Sales' customers and advised them to no longer make payments to Bass at the Corpus Christi office, but instead to mail payments directly to Metzger, who owned the remaining 50% Of United Sales' capital stock, in Plainview. When Bass learned of the letter, he telephoned Metzger and asked about Brown's letters. Metzger told him that Brown had informed him that Bass and Lee were converting the customers of United Sales over to the "Bass and Lee Company". Trouble between Metzger and Bass developed.
Metzger became concerned about his business interests in Corpus Christi. He met Cole in Memphis, Tennessee, in June, 1971, and discussed his problems with him. Cole told Metzger that he had an employee, Joe D. Wilson, (a defendant in this case) and suggested that Wilson might like to go to work for Metzger. Later, Cole outlined to Wilson the problems Metzger was having and inquired as to whether or not Wilson would be interested in going to work for Metzger. An agreement was reached shortly thereafter between Metzger and Wilson.
Metzger executed a general power of attorney in favor of Wilson on June 28, 1971. The power of attorney, among other provisions, conferred upon Wilson power to:
". . . act for me in my place and stead in all transactions concerning United Sales, Inc.; to act as my agent in the running and operation of said business; to assume control and active operations of the...
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