Green v. Meadows

• Decision Date: 07 November 1974
• Docket Number: No. 16318,16318
• Citation: 517 S.W.2d 799
• Parties: James A. GREEN, Jr., et al., Appellants, v. A. K. MEADOWS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 799

517 S.W.2d 799

James A. GREEN, Jr., et al., Appellants, v. A. K. MEADOWS, Appellee.

No. 16318.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Nov. 7, 1974.

Rehearing Denied Jan. 9, 1975.

Fulbright & Crooker, Thomas P. Sartwelle, Russell H. McMains, Houston, for appellants.

Moore, Morris & Payne, Louis M. Moore, Houston, for appellee.

COLEMAN, Chief Justice.

This is a suit for an accounting growing out of an alleged partnership combined with a suit for damages for malicious prosecution. The cause was submitted to a jury, and based on its verdict, a judgment was rendered for the plaintiff, A. K. Meadows, against James A. Green, Jr. & Company, a Corporation, and James A. Green, Jr., jointly and severally. The principal issues involved relate to the sufficiency of the evidence to support the verdict of the jury.

In 1967 James A. Green, Jr. and A. K. Meadows entered into a customs house brokerage business in Houston known as Meadows & Green . This business relationship terminated in October, 1969. There is a disagreement between the parties as to whether Meadows occupied the status of a partner rather than that of employee of James A. Green, Jr. There is also disagreement as to whether Meadows was to be compensated for his work during the first few months of the business relationship and whether certain expenses for which Meadows had been compensated were properly business expenses.

Prior to the termination of the business relationship between the parties Meadows admittedly wrote various company checks to pay personal debts. Green reported this matter to the District Attorney of Harris County, who presented the matter to the Harris County Grand Jury. The Grand Jury returned two felony embezzlement indictments against Meadows. After a trial of one indictment resulted in an acquittal, the other was dismissed.

Meadows contended that his business relationship with Green was that of a partnership and, therefore, he could not be guilty of embezzlement for using company funds for personal debts. Green maintained that appellee was an employee of Meadows & Green and nothing more. This contention was documented by numerous business records, but the jury concluded that a partnership existed and that Green owed Meadows a sum of money, and further that Green maliciously prosecuted appellee. Damage were found in the total sum of $27,921.35.

Green and the corporation have preserved no challenges to the factual sufficiency of the evidence to support the jury's answers. All of appellant's fact points, though properly worded by referring only to the trial court's error in overruling defendant's motion for new trial, are referable to assignments of error that can only be construed as legal sufficiency assignments. All points containing great weight and insufficient evidence terminology are germane to assignments that begin 'The court erred in submitting to the jury' and 'in rendering judgment.' The trial court cannot refuse to submit an issue or render judgment on the verdict because of the factual insufficiency of the evidence. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970); McDonald v. New York Central Fire Insurance Company, 380 S.W.2d 545 (Tex.1964). We can consider only those points of error raising the issue of the legal sufficiency of the evidence to support the jury's answers to the issues submitted. In determining these questions we must consider the evidence in the light most favorable to the jury's answers and must disregard evidence in conflict therewith.

Before the trial court would be authorized to grant an instructed verdict, or to enter a judgment non obstante veredicto, it must appear, in the first case, that there is no evidence raising a jury issue on a fact vital to the plaintiff's case, or, in the other case that there is no evidence to support the jury's verdict on such a vital issue. Travelers Insurance Company v. Williams, 378 S.W.2d 110 (Tex.Civ.App.--Amarillo 1964, writ ref. n.r.e.).

Many cases may be cited for the proposition that actions for malicious prosecution are not favored in the law, and that in such actions the proof must be positive, clear and satisfactory. Montgomery Ward & Company v. Kirkland, 225 S.W.2d 906 (Tex.Civ.App.--San Antonio 1949, writ ref. n.r.e.). In Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), the court said:

'. . . In certain types of cases courts have frequently pointed out that defects must be established by clear and convincing evidence. That rule, as said in Carl v. Settegast, Tex.Com.App., 237 S.W. 238, arose at a time when such suits were cognizable only in courts of chancery where matters of fact, as well as of law, were tried by the chancellor. Verdicts of juries in those courts were advisory only. In our blended system the field in which that rule operates is very narrow. In practical effect it is but an admonition to the judge to exercise great caution in weighing the evidence. No doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence, and special issues requiring a higher degree of proof than preponderance of the evidence may not be submitted to a jury . . . In ordinary civil cases trial courts and Courts of Civil Appeals may set aside jury verdicts and grant new trials when, in their opinion, those findings, though based upon some evidence, are against the great weight and preponderance of the evidence, but they may not render a judgment contrary to such findings. In those cases in which the 'clear and convincing' rule is applicable if, in the opinion of the trial judge, the evidence in support of the verdict does not meet the test of that rule, he may set it aside and order a new trial; but he should not render a judgment contrary thereto.'

In this case the appellant did not present to the trial court in its motion for new trial, with one exception to be discussed, the contention that the plaintiff failed to prove by positive, clear, and satisfactory evidence, the necessary elements to establish a cause of action for malicious prosecution.

It is suggested in Briscoe v. Bright's Administrator, 231 S.W. 1082 (Com.App. of Texas, Sec. B, judgment adopted), that the question of the sufficiency of the proof to meet the requirement that the elements of the cause of action be established clearly and satisfactorily can be presented as a question of law. In that case the court said:

'. . . Conceding for the purposes of this case that the contract sought to be enforced falls within the rule requiring that its terms be proved clearly and satisfactorily and treating the question as one of law only, the evidence must be viewed most strongly in support of the trial court's judgment. The fact that the witnesses who testified may not have been disinterested, or may have made conflicting statements, or that their credibility may have been attacked, are matters with which it is not our province to deal. As we understand the rule contended for, it is not violated by objections to the evidence of this character. It only requires that the terms of the contract essential to recovery be supported by evidence sufficiently clear for the court to determine what those terms were without resorting to inference or conjecture. In this, as in every other class of cases that we now recall, the credibility of the witnesses and the weight to be given to their testimony are questions solely within the province of the jury, subject, however, to be revised by the trial judge and The Court of Civil Appeals. . . .' (emphasis added)

In determining the legal sufficiency of the evidence to support the jury's answers to the issues submitted we will be guided by these rules.

Mr. Meadows testified that he began work with customs house brokers as an employee in January of 1956. In 1966 he began his own business called 'Meadows Delivery Service' which entailed deliveries for importers and exporters, typing and entry work for brokers, and that he had been operating this business for about nine months before he got in touch with Mr. Green. He learned that Green was interested in opening a licensed customs house brokerage office in Houston. Subsequently they had several meetings during the course of which Meadows told Green that he was not interested in being an employee; that he wanted to be a partner. They agreed that they would be partners and that the business would be operated under the name 'Meadows & Green.' It was agreed that Meadows would not be responsible for any of the losses, but that he would share in the profits. He testified that he was to get a salary; Mr. Green was to contribute all of the money, and that he (Meadows) would participate in the profits but that Green would take all the losses. Meadows' proportionate share of the profits was to be decided '. . . when we made a profit for the year.' Again he testified that while it was agreed that he would participate in the profits 'that . . . nothing definite had been established.'

In order to do business as a customs house broker it is necessary to have a license from the United States Government. A corporation or a partnership may receive such a license, but the partnership must have at least two persons holding such a license, and a corporation must have at least two employees who are licensed. There is evidence that Green did not desire to start operating the business until a later date, but at the urging of Meadows executed a power of attorney authorizing Meadows to operate a licensed brokerage office under the authority of his personal license in September, 1967. At this time Meadows prepared and filed with the Assumed Name Records of Harris County, Texas, a certificate sworn to and signed by him as an agent of Green that the business operating under the name of 'Meadows & Green' was a sole proprietorship owned by Green. He testified that he did this on the instructions of Green. The money...