Kelly v. Exxon Corp.

• Decision Date: 14 March 1977
• Docket Number: No. 596,596
• Citation: 35 Md.App. 272,370 A.2d 162
• Parties: Stuart F. KELLY v. EXXON CORPORATION.
• Court: Court of Special Appeals of Maryland

Page 272

35 Md.App. 272

370 A.2d 162

Stuart F. KELLY v. EXXON CORPORATION.

No. 596.

Court of Special Appeals of Maryland.

March 14, 1977.

W. Lee Harrison, Towson, with whom were William E. Seekford, and Deniel T. Doherty, Jr., Towson, on the brief, for appellant-cross-appellant.

Donald E. Sharpe and Jeffrey D. Herschman, Baltimore, with whom were Herschman, Baltimore, with whom were Piper & Marbury, Baltimore, on the brief, for appellee-cross-appellant.

Argued before MORTON, MELVIN and LISS, JJ.

LISS, Judge.

This complex and convoluted case reaches us on appeal and cross-appeal from judgments on verdicts returned by a jury in the Circuit Court for Baltimore County (MacDanie, J., presiding) in favor of Stuart F. Kelly ('Kelly'), appellant/cross-appellee, against Exxon Corporation ('Exxon'), appellee/cross-appellant. The jury found that Kelly was entitled to the sum of one thousand dollars ($1,000) as compensatory damages and forty thousand dollars ($40,000) as punitive damages for the alleged malicious prosection of Kelly by Exxon.

The controversy had its genesis in August, 1973, when William J. Clinton, security agent for Exxon, communicated with a Corporal Claude O. Keen of the Maryland State Police and requested his cooperation in an investigation of the disappearance of company products from Exxon's Dundalk terminal. The plan agreed upon and carried out on September 26, 1973, was that the assistant terminal superintendant, Brady Moore, and the garage superintendent, Edward Anderson, equipped with binoculars, would position themselves on two partially constructed parallel bridges (about 250 feet from the garage) from which they would conduct a surveillance of the night shift garage mechanics.

Kelly, one of the two mechanics working, spent several hours repairing a tank truck radiator, and at some point during the evening, he removed several five gallon oil cans from the trunk of his car and was seen carrying them through lthe garage. The testimony is conflicting as to what occurred from the point on. Kelly said that the cans contained 'junk' material which he dumped into the garage trash dumpster; the private use of the dumpster by the mechanics was permitted by the company. Moore testified that Kelly took the five gallon cans from the trunk of his automobile and proceeded to the manifold lines of a tank truck from which he filled the cans; ¹ that he saw Kelly place the cans on the ground near the garage and back his personal car up to the garage; that he further saw Kelly make motions 'that any reasonable person would take to be lifting motions; however (Kelly's) body was between me and the car and I could not physically see those cans go into his car'; and that so far as Moore knew, neither he nor any other Exxon employee had actually seen Kelly carry any gasoline from the Dundalk facility on that night or on any other night. Anderson testified that he saw Kelly back his car up to the garage and heard the manifold valve slam off, but because of obstructions to his view, he did not see Kelly drain any gasoline out of the manifold line of any of the tank trucks or put anything into the trunk of his car.

Kelly stated that he may have drained the manifold line of one of the trucks that evening but that this was not unusual because as a safety measure, it was often considered necessary to drain gasoline from the manifolds. This 'slop gas' (contaminated gasoline), he said, was either thrown away or with the company's knowledge used by employees to wash their jackets, gloves or other clothing. He denied placing the cans in the trunk of his car and denied removing any gasoline from the Exxon terminal.

On October 8, 1973, Kelly was called into Anderson's office where a number of Exxon's management personnel were present; they advised him of the surveillance of his activities on the night of September 26th and that he was suspected of stealing company gasoline. Kelly denied the charge and returned to his work; he was advised later that afternoon that the company had decided to suspend him pending further investigation.

A week later, Kelly was informed that he was being terminated for 'violation of a posted offense or offenses' relating to the commission of a crime on company time or property and stealing from the company (or from others) on company time or property. On October 24th, Corporal Keen called Kelly and advised him that he was going to have to arrest him; they arranged to meet the following afternoon at police headquarters; and Moore in the interim had that morning executed an affidavit for a summons/arrest warrant alleging that Kelly had taken 15 gallons of gasoline from Exxon's Dundalk garage terminal. Kelly was arrested, processed, placed in the lock-up, and later relased on his personal recognizance. The case was called for trial before a jury on December 18, 1973, in the Criminal Court of Baltimore, but after the selection of the first four prospective jurors, the State advised the court that it would enter a nolle prosequi in the case.

On September 27, 1974, Kelly filed at Declaration in the Circuit Court for Baltimore County against Exxon, Clinton and Moore, individually and as servants and employees of Exxon. The Declaration in a number of counts charged the defendants with malicious prosecution, slander, and false imprisonment arising out of the alleged theft of Exxon's gasoline. Subsequently, an Amended Declaration was filed against the same defendants alleging malicious prosecution and slander.

On April 26, 1976, a jury was impaneled and the case proceeded to trial. At the close of Kelly's case-in-chief, the court granted a motion for a directed verdict as to the slander count, removing Clinton as a defendant; Kelly was granted a motion to dismiss his claim as to Moore; and the case proceeded against Exxon only as to the issue of malicious prosecution. We have heretofore specified the verdicts returned against Exxon, which subsequently filed and was denied a motion for judgment notwithstanding the verdict or in the alternative a new trial. This, then, was the posture of the case antecedent to the appeals and cross-appeals now before us.

There are a number of interesting and involved questions raised by the parties, and we shall consider them in the order which we believe will provide the most comprehensive disposition of them.

I

Corss-appellant, Exxon, raises three issues basic to the determination of the case, and we shall consider these issues first.

1) Was there legally sufficient evidence from which the jury could conclude that there was an absence of probable cause for the institution of the criminal proceeding?

Traditionally, malicious prosecution suits are disfavored by the law. Siegman v. Equitable Trust Co., 267 Md. 309, 297 A.2d 758 (1972); North Point Construction Co. v. Sagner, 185 Md. 200, 44 A.2d 441 (1945). The reason given by the courts for this disfavor is that criminal prosecutions are essential for the maintenance of social peace and should not be discouraged by the threat of subsequent civil proceedings. Stansbury v. Luttrell, 152 Md. 553, 137 A. 339 (1927).

Maryland, however, does recognize actions for malicious prosecution, and in Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 505, 287 A.2d 280, 284 (1972), the Court stated the elements of such an action:

'To prevail in a suit for malicious prosecution the plaintiff must show: (1) that the criminal proceeding instituted or abetted by the defendant has terminated in his favor, apart from whether any inference as to probable cause for the proceeding arises from the termination; (2) a want of probable cause for the proceeding which may, or may not, be inferred from the termination of the proceeding, depending upon the manner of the termination; (3) malice, which is a primary purpose for the institution of the proceeding, other than that of bringing an offender to justice.'

Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972); Banks v. Montgomery Ward & Co, Inc., 212 Md. 31, 128 A.2d 600 (1957); and Shipp v. Autoville Ltd., 23 Md.App. 555, 328 A.2d 349 (1974).

The initial question to be determined here is whether Kelly produced sufficient evidence of lack of probable cause to entitle him to have the issue put before the jury? Exxon answers in the negative and urges, therefore, that the trial court erred in denying its motion for a directed verdict. Our appellate courts have consistently held that where the facts and inferences reasonably deducible therefrom are clear and undisputed, then the question of probable cause is one of law. Durante v. Braun, 263 Md. 685, 284 A.2d 241 (1971); Kennedy v. Crouch, 191 Md. 580, 62 A.2d 582 (1948); Kimbrough v. Giant Food, Inc., 26 Md.App. 640, 339 A.2d 688 (1975).

When considering a motion for a directed verdict submitted on the ground that there is no evidence legally sufficient to show lack of probable cause, we must apply the fundamental rule that the evidence and inferences fairly deducible therefrom must be viewed in a light most favorable to the party against whom the motion is directed. Levine v. Rendler, 272 Md. 1, 320 A.2d 258 (1974); Derby v Jenkins, 32 Md.App. 386, 363 A.2d 967 (1975); Picone v. Talbott, 29 Md.App. 536, 349 A.2d 615 (1975).

In Tully v. Dasher, 250 Md. 424, 440, 244 A.2d 207, 217 (1968), the Court of Appeals explicated the test to be applied under these circumstances:

'It is well established that when a defendant moves for a directed verdict in his favor he must, for the consideration of the motion, concede the truth of all facts that tend to support the right of the plaintiff to recover as well as all inferences which might naturally and reasonably be deduced from those facts, even though these facts may be contradicted. If there is any legally relevant and competent evidence from which a rational mind could infer a fact in issue, the trial court should not invade the province of the jury by directing a verdict for the defendant.'...