Eans v. Grocer Supply Co., Inc.

• Decision Date: 15 February 1979
• Docket Number: No. 17227,17227
• Citation: 580 S.W.2d 17
• Parties: John Henry EANS, Appellant, v. GROCER SUPPLY CO., INC., Appellee. (1st Dist.). Order Requiring Remittitur
• Court: Texas Court of Appeals

Page 17

580 S.W.2d 17

John Henry EANS, Appellant, v. GROCER SUPPLY CO., INC., Appellee.

No. 17227.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Order Requiring Remittitur Feb. 15, 1979.

March 8, 1979.

Rehearing Denied April 5, 1979.

Conner & Dreyer, Jerry D. Conner, Houston, for appellant.

Talbert, Giessel & Stone, Inc., Alice M. Giessel, James Barker, Friloux, Smith & Abney, David Reed, Richard E. Stephanow, Houston, for appellee.

Before EVANS, WARREN and WALLACE, JJ.

EVANS, Justice.

This is an action for malicious prosecution growing out of charges filed against the plaintiff for misdemeanor theft.

On January 29, 1974, the plaintiff John Henry Eans was working as an employee of Grocers Supply, Co., Inc., a wholesale food supplier, at its frozen food locker. The plaintiff had another job during the daytime at the Riverside Animal Hospital, and he worked for Grocers Supply from 9:30 P.M. to about 5:30 A.M. On the night in question, he had reported to his job at Grocers Supply and parked his car in the company lot outside a security fence. After presenting his identification badge at the guard gate, he entered the plant, and walked to the locker area where he put on insulated clothing to begin his work in the frozen food locker. About 4:30 A.M. he was summoned to the shipping area by a loud speaker and was met there by his supervisor, Pinkston Bell, and other company employees. He then walked with Bell to the main guard gate where he was met by Sergeant D.D. Baker, a City of Houston police officer privately employed by Global Security, Inc. to advise Grocers Supply on security matters, and by Ronald Kruise, a former police officer who was employed by Grocers Supply as its security supervisor. The plaintiff proceeded with this group to the parking lot where, upon opening the trunk of his vehicle, a package of luncheon meat and a package of frozen strawberries were found. Sergeant Baker placed the plaintiff under arrest and caused him to be jailed and subsequently charged with misdemeanor theft. The original theft action was later dismissed upon the failure of the security supervisor Kruise to appear as the complaining witness; however, the theft charge was subsequently reinstituted against the plaintiff after Grocers Supply wrote a letter to the prosecuting attorney explaining why Kruise had failed to appear and testify at the first trial. The second action also terminated in a dismissal, and the plaintiff then brought this suit for malicious prosecution against Grocers Supply, Global Security, Inc., and D.D. Baker.

The instant cause was tried to a jury, and, at the close of the evidence, the court granted a motion for an instructed verdict filed by the defendants, D.D. Baker and Global Security, Inc. It overruled a similar motion filed by Grocers Supply and the case was then submitted to the jury on special issues. The jury found: (1) that the plaintiff was innocent of the charges filed against him; (2) that Grocers Supply had instituted the criminal prosecution against him; (3) that Grocers Supply had acted without probable cause, and (4) with malice in instituting the criminal proceedings; (5) that the plaintiff had sustained damage as a result of the prosecution; (6) that $100,000.00 would fairly and reasonably compensate him for such damage; and (7) that he should receive an additional sum of $5,000.00 as exemplary damages. The trial court overruled the plaintiff's motion to enter judgment in his favor on the jury's verdict and, instead, it entered a judgment non obstante veredicto in favor of Grocers Supply. This is an appeal from that judgment.

In four points of error the plaintiff contends that the trial court erred in disregarding the jury's answer to special issue no. 3 and in finding, as a matter of law, that there was probable cause for the institution of criminal proceedings. In reviewing these points all evidence must be considered in the light most favorable to the plaintiff against whom the judgment n. o. v. was rendered, and every reasonable intendment deductible from the evidence must be indulged in his favor. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974). Thus, this court cannot sustain the judgment n. o. v. unless the record reflects that there was no evidence upon which the jury could have based its finding or unless the evidence shows, as a matter of law, that the defendant, Grocers Supply, was entitled to judgment in its favor. Monesson v. Champion Intern. Corp., 546 S.W.2d 631, 636 (Tex.Civ.App. Tyler 1976, writ ref'd n. r. e.). At the time of the occurrence in question, the plaintiff was an unmarried black male, 37 years of age, residing with his sister in the City of Houston. He had worked at two jobs some 20 years and had worked for Grocers Supply some seven years. At the time of trial he was employed by Cameron Iron Works in its aviation department at Hobby Airport from 8:00 A.M. to 5:00 P.M., and in the evening he worked as a janitor for ITT on Silsbee Road. The plaintiff had never before been arrested or in jail. He had never been accused of a crime except for one occasion when Clarence Chadwick, the personnel director for Grocers Supply, had accused him of selling merchandise on the street. However, after the accusation was made, the plaintiff never heard anything further about the matter.

Upon completing his work at his daytime job on the evening in question, the plaintiff drove to Grocers Supply, parked his car on the company parking lot, and after presenting his employee identification badge to the guard at the entrance gate, he proceeded to the locker area where he donned insulated clothing and boots to work in the frozen food locker. His job that night was to keep the place clean. The plaintiff was afforded a 30 minute lunch break between the hour of 11:30 P.M. and midnight, and ordinarily he would either eat or play dominoes during his lunch break; however, on the night in question, he did not eat lunch, and since there was no domino game he slept during his lunch break. He testified that he did not leave his work area during the time he was at work and that his fellow employees, his supervisor and the gate guard would have known if he had left his authorized work area.

The plaintiff further testified that when he left his automobile in the parking lot it was locked and he put his keys in his pocket. His keys were needed to open his clothes locker, and he kept his car key on a key chain in his street clothes pants pocket over which he wore insulated clothing. When he arrived at the guard shack, Sergeant Baker told him that he, Baker, had received a telephone call from "someone" who advised him that the plaintiff had gone to his car at the lunch break and had put something into it. Baker told the plaintiff that he had to search his car and marched him to his automobile. The plaintiff asked Baker to check around to determine whether he had left his authorized work area, but Baker refused and "actually laughed" at him. Baker ordered the plaintiff to open the car, and the plaintiff first opened the driver's side. Baker did not look in the car. The plaintiff then was directed to open his trunk, and when the trunk was unlocked and opened, several boxes of frozen food were revealed. The plaintiff testified that when he opened his car door nobody bothered to look into the car; they "just stood there looking around laughing". He said that when he opened the trunk of his car and his trunk "clicked," Baker said "You are under arrest". He testified that he made no objection to the opening of his automobile since he had "nothing to hide" and that despite his request to Baker that an inquiry be made of his fellow employees to determine whether he had left the frozen food area, Baker refused to do so; Baker only laughed at this request. The plaintiff was then taken back inside for a brief A party who causes a criminal complaint to be filed against another person does so on probable cause where, in good faith, he makes a full and fair disclosure of the facts and circumstances known to him and where, on the basis of such disclosure, a criminal complaint is thereafter filed. Sebastian v. Cheney, 24 S.W. 970 (Tex.Civ.App.) rev'd on other grounds 86 Tex. 497, 25 S.W. 691 (1894). However, unless the party causing the complaint to be filed acts in good faith in disclosing to the prosecuting attorney all material facts known to him, probable cause does not exist. J.C. Penney Co. v. Gilford, 422 S.W.2d 25, 30. (Tex.Civ.App. Houston (1st) 1967 writ ref'd n. r. e.) Ada Oil Company v. Dillaberry, 440 S.W.2d 902 (Tex.Civ.App. Houston (14th Dist.) 1969, writ dism'd). The reporting party is required to bring to the attention of the prosecuting attorney all material facts known to him relating to the matter, including facts from which the district attorney by making further investigation might determine that the accused was not guilty of any offense. J.C. Penney Co. v. Gilford, supra.

meeting with his personnel director, and afterward was jailed and charged with misdemeanor theft. He spent most of the following day in jail and incurred bail bond and attorney's fees. After the first charges were dismissed, the charges were refiled and an additional arrest warrant was issued and mailed to him. He then incurred additional bond and attorney's fees and was compelled to attend a criminal court hearing once, sometimes twice, per month for a year before the proceedings were terminated in his favor.

There is evidence in the record from which the jury could reasonably have concluded that a good faith disclosure of all material facts was not made to the prosecuting attorney when the plaintiff was jailed and charges were instituted against him. The jury could have decided from the testimony that Sergeant Baker had arbitrarily refused to inquire of the gate guard or the plaintiff's fellow employees with respect to the plaintiff's whereabouts during the evening in question and...