Currey v. Lone Star Steel Co.

• Decision Date: 06 September 1984
• Docket Number: Nos. 2-84-025-C,2-83-207-CV,s. 2-84-025-C
• Citation: Currey v. Lone Star Steel Co., 676 S.W.2d 205 (Tex. App. 1984)
• Parties: Floyd CURREY, Appellant, v. LONE STAR STEEL COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 205

676 S.W.2d 205

Floyd CURREY, Appellant, v. LONE STAR STEEL COMPANY, Appellee.

Nos. 2-84-025-CV, 2-83-207-CV.

Court of Appeals of Texas Fort Worth.

Sept. 6, 1984.

Will Barber, Dallas, for appellant.

Burford & Ryburn, and Catherine A. Gerhauser, Dallas, for appellee.

Before FENDER, C.J., and HUGHES and JOE SPURLOCK, II, JJ.

OPINION

FENDER, Chief Justice.

This case involves two separate lawsuits which stem from the same basic set of facts and which were consolidated on appeal for the purposes of oral argument. Both suits involve the same parties. In the first suit [hereinafter referred to as Currey I], the trial court granted the defendant an instructed verdict at the close of the plaintiff's evidence. In the second suit [hereinafter referred to as Currey II], the court granted a summary judgment on the pleadings in favor of the defendant. The plaintiff now appeals both judgments, and we will consider each appeal separately.

We reverse the judgment of the trial court in Currey I, and in Currey II we affirm in part and reverse in part.

The appellant in the case, Floyd Currey, was employed for over twenty years by the appellee, Lone Star Steel Company [hereinafter referred to as Lone Star]. Currey worked at a steel plant owned by Lone Star, and was directly involved in the steel-making process. As a condition of his employment, therefore, he was required to sign documents assigning all of his ideas, discoveries, inventions, and improvements to Lone Star. Currey also made a written promise that if he left Lone Star he would not divulge any secret information obtained during his employment.

Although Currey was originally a union member, in 1966 he was promoted outside the bargaining unit to a supervisory position. In 1971, while acting in the course of his duty as a supervisor, Currey issued one of his subordinates, Shorty Jones, a disciplinary pink slip for failure to do adequate work. After receiving the slip, Jones followed Currey home from work and attacked him in his yard. Currey defended himself from the attack, and as a result injured Jones. Lone Star then terminated Jones because the assault stemmed from "work connected issues."

Immediately after the assault took place, Currey called both his immediate supervisor, Charles Coleman, and the Lone Star employee relations manager, Jim Smith. Smith then called the Lone Star plant attorney, Albert Tarbutton, who instructed Smith to have Currey go directly to the plant and give a statement regarding the fight. As a result of Tarbutton's instructions, Currey returned to the plant that same evening and spent approximately five hours making a formal statement to plant employees.

Several days after the altercation, Jones filed criminal assault charges against Currey and threatened him with a civil lawsuit. Smith directed Currey to go to Tarbutton's office about the matter and when Currey arrived, Tarbutton gave him an appearance bond to sign. After Currey signed the bond, Smith and Tarbutton also signed it as sureties.

In addition to the handling of the appearance bond, Tarbutton also discussed the prospective civil lawsuit with Currey. According to Currey, Tarbutton told him to keep Lone Star out of the case, because he would be a more sympathetic defendant alone. Currey claims that Tarbutton then promised him that if he would not involve Lone Star, Lone Star would pay all of the legal fees and expenses incurred in defending the action. Finally, Currey contends, Tarbutton instructed him to hire a particular lawyer to defend him in the suit, rather than allowing him to employ counsel of his own choosing.

Although the criminal charges against Currey were dropped, Jones did file a separate civil suit. In order to defend this suit, Currey hired the attorney whose name was supplied to him by Tarbutton. Although Currey was eventually granted summary judgment in the suit, he incurred approximately $3,675.00 in legal fees. Despite Currey's repeated demands for reimbursement from Lone Star, however, Lone Star's management never met with him regarding payment of the fees, and he was forced to sell part of his farm in order to pay the fees himself. Finally, Currey filed suit against Lone Star in order to recover his legal expenses. [Currey I].

Lone Star responded to the suit by firing Currey. Currey then attempted to present his grievances at Lone Star's parent company shareholder meeting, but was refused a hearing. He then initiated a second action against Lone Star [Currey II] in which he alleged that the company was liable to him for further actual and exemplary damages as a result of unconscionable conduct toward him which ultimately resulted in his termination. With regard to both suits, the trial court found that there was no genuine issue of material fact and that Lone Star was entitled to judgment in its favor as a matter of law.

CURREY I

Currey's basic contention in Currey I is that Lone Star is liable to him for attorney's fees because 1) Albert Tarbutton fraudulently represented to Currey that Lone Star would pay his attorney's fees; 2) Tarbutton had either actual or apparent authority to make such a promise; and 3) Currey relied on the promise and thereby incurred damages. On appeal, Currey contends in his first point of error that the trial court erred in instructing a verdict in favor of Lone Star, because there was some evidence adduced at trial regarding all of the elements of his action. We agree.

Generally, a trial court may instruct a verdict if as to at least one fact proposition, which constitutes a component element of plaintiff's theory of recovery, the plaintiff's evidence is so meager that reasonable men could not differ as to the conclusion that such proposition is not established. Mumphord v. First Victoria Nat. Bank, 605 S.W.2d 701 (Tex.Civ.App.--Corpus Christi 1980, no writ). In reviewing the trial court's granting of an instructed verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. Texas Employers Ins. Ass'n v. Page, 553 S.W.2d 98 (Tex.1977). If there is any conflicting evidence of probative nature in the record, a determination of the issue is for the jury. White v. Southwestern Bell Tel. Co., Inc., 651 S.W.2d 260 (Tex.1983).

When the record in the instant case is reviewed in the light most favorable to Currey, it is clear that there is conflicting probative evidence on the issue of whether Tarbutton made the alleged promise of payment. Currey testified at trial that the promise was made; Tarbutton denied it in his deposition which was read to the jury. It is also clear from the record that Currey presented probative evidence as to his damages; he introduced an exhibit showing the specific dollar amount which he allegedly lost as a result of Lone Star's refusal to pay. The main point of contention in the case, therefore, is whether there is any probative evidence that Tarbutton had the authority, as agent for Lone Star, to promise that Lone Star would pay Currey's attorney's fees.

It is a basic rule of agency that an agent may not bind his principal in the absence of either actual or apparent authority to do so. 3 Tex.Jur. Agency sec. 31 (1980). Thus, unless Tarbutton had actual or apparent authority to promise payment of legal fees, any promise he may have made to Currey cannot be binding on Lone Star. In order to reverse the trial court's instructed verdict, therefore, we must find some probative evidence in the record that shows such authority on the part of Tarbutton.

In general, actual authority means authority that the principal (1) intentionally conferred upon the agent; (2) intentionally allowed the agent to believe that he possessed; or (3) by want of due care allowed the agent to believe that he possessed. National Cash Register Co. v. Wichita F. Food Lockers, 172 S.W.2d 781 (Tex.Civ.App.--Fort Worth 1943), aff'd 142 Tex. 109, 176 S.W.2d 161 (1944). Apparent authority is based on the doctrine of estoppel, and one seeking to charge the principal through apparent authority of his agent must establish conduct by the principal that would lead a reasonably prudent person to believe that the agent had the authority he purported to exercise. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624 (Tex.1981). Thus, both actual and apparent authority depend for their creation on some manifestations, written or spoken words or conduct by the principal communicated either to the agent (actual authority) or to the third party (apparent authority). Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974).

Although we find no evidence in the case at bar that Tarbutton had any actual authority to promise to pay Currey's legal fees, we find some probative evidence that he was clothed with apparent authority to do so. A review of the record in the light most favorable to Currey reveals evidence of acts by Lone Star and its employees which could have led a reasonably prudent person to believe that Tarbutton was authorized to make the alleged promise. First, Currey presented evidence that Lone Star's management in general held Tarbutton out to its employees as the plant attorney with authority to deal with legal problems arising at the plant. Currey produced testimony that Tarbutton was listed as the Lone Star attorney on the company organizational chart, and that his office was located on the plant premises. Further, Currey's evidence indicated that Tarbutton in fact had authority to handle the legal matters at the plant, such as contract negotiations, EPA and OSHA matters, and labor law problems.

Secondly, Currey produced some evidence of acts by individual Lone Star employees which could have reasonably led him to believe that Tarbutton had the authority to promise payment of legal fees. Currey presented testimony showing that when he called employee relations manager, Jim Smith, on the night of the assault, Smith immediately referred the...