Kroger Food Co. v. Singletary

• Decision Date: 13 February 1969
• Docket Number: No. 7027,7027
• Citation: 438 S.W.2d 621
• Parties: KROGER FOOD COMPANY et al., Appellants, v. Caesar SINGLETARY, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 621

438 S.W.2d 621

KROGER FOOD COMPANY et al., Appellants, v. Caesar SINGLETARY, Appellee.

No. 7027.

Court of Civil Appeals of Texas Beaumont.

Feb. 13, 1969.

Judgment Made Final March 6, 1969.

Renfrow, Zeleskey, Cornelius, Rogers & Berry, Lufkin, for appellant.

Musslewhite, Maroney & Cely, Lufkin, for appellee.

KEITH, Justice.

Plaintiff, Singletary, recovered judgment against defendant, Kroger Food Company, and its manager, Len Brown, for conversion of his automobile ($175.00), the rental value thereof during its detention ($1,760.00), and exemplary damages ($3,925.00). The parties will be designated as they appeared in the lower court.

On a Saturday afternoon, plaintiff went to the Kroger supermarket in Lufkin to purchase groceries in his 1954 Chevrolet which he had had for some eight or ten years, and was accompanied by a boy thirteen years of age. He parked on Kroger's parking lot, left the boy in the car sitting upon the back seat and the keys in the ignition. Within a few minutes, the car had crashed through a large plate glass window of Kroger's store, and the boy was then sitting in the driver's seat. The circumstances surrounding this change of position of the car is not explained in the record.

The crash made, in plaintiff's words, 'a real loud noise,' whereupon, he went to where his car was then located. Apparently Len Brown, Kroger's manager, also learned of the intrusion of the Singletary vehicle into his food store, because within a few minutes, according to Singletary, Brown was asking him if he had insurance upon the vehicle (which he did not have) and advising him that 'I am going to hold your car for damage to this window plate glass.' In a few minutes, the police were upon the scene along with a wrecker operated by Merl Selman. Selman testified he has summoned by the police.

Selman hooked onto plaintiff's car and removed it from the store, whereupon, Selman handed plaintiff his card and proceeded to haul off Singletary's vehicle, leaving him to walk home from the grocery store.

Denying that he gave anyone, either Kroger, the police, or Selman, permission to haul off the car, plaintiff testified that Brown told him that he was going to hold the car for damages to his window, amounting to $500.00, until he was paid. This being on a Saturday afternoon, we find Singletary in his lawyer's office either that afternoon or early the next week following which he made a trip to Selman's wrecking year. He did not regain possession of the car then or later. All subsequent dealings with reference to possession of the car were left to his lawyers.

One of Singletary's lawyers testified that he called Brown upon the telephone and was advised that 'he was holding it and before he could release the man's automobile that he would have to call his superiors in Dallas.' Further, Brown was quoted as saying that 'he had had it hauled over to Selman's and he was holding it until Kroger Company was repaid for their glass.' Three or four days later, in a telephone conversation with Selman, the investigating lawyer was told that the car was available upon payment of $14.50. Brown refused to pay the $14.50 which had accrued and this suit followed.

In one of the conversations with Brown, plaintiff's lawyer says that he advised Brown that in his opinion he could not hold Singletary's car legally for a debt due Kroger, but Brown still refused to restore the possession of the car to plaintiff. Selman was quoted by the lawyer as saying that the demand for the $14.50 was for his services and did not include any damages claimed by Kroger.

Brown did not testify although it appears from the record that he was employed in a competitively owned store in Lufkin at the time of trial.

The jury found: (1) plaintiff's car was converted by Kroger and Brown; (2) which was done by Brown in the scope of his employment with Kroger; (3) the fair market value of the car at the time of the conversion was $175.00; (4) that it was 'wrongfully detained' for 440 days; (5) the fair rental value during the period of detention was $4.00 per day; (6) that Singletary was entitled to exemplary damages Against Brown; (7) such exemplary damages being fixed at $3,925.00; and (8) that Brown acted 'willfully' and did demonstrate 'that he was consciously indifferent to the rights of others', while he was acting in the scope of his employment for Kroger.

The first defensive issue was answered against defendants when the jury declined to find that Selman offered to release plaintiff's car on the date of the incident upon payment of the wrecker charges of $7.50. The remaining defensive issues were not answered since they were submitted contingently upon the first.

The judgment for the plaintiff was entered upon the basis of the verdict after the court had overruled the defendants' motion for judgment non obstante veredicto. The appeal is predicated upon twenty-three points which are briefed in three groups.

The first series of points contends that (1) the trial court erred in overruling the objection to the charge because of the failure to submit the question of agency on the part of Selman; (2) because Selman was the only person who exercised 'actual dominion and control' over the car; (3) there was no finding that Selman was the agent of the defendants; and (4) that Special Issue No. 1, inquiring if Brown converted plaintiff's automobile, was a comment upon the weight of the evidence since only Selman had physical control thereof. We have carefully considered the series and each point in this group is hereby overruled.

Upon the trial, plaintiff brought Helen Gilbert, 'head cashier' at Kroger's Lufkin store, who testified that upon the date of the incident she knew that Brown was manager of the store, having held such position for approximately six months. Kroger tendered Selman as a witness, thereby vouching for his credibility, and throughout his testimony, Brown was identified as the 'manager' of Kroger. Kroger offered no other witness and made no dispute of the fact that Brown was in truth and in fact its manager or was not acting for Kroger in directing Selman to remove plaintiff's car from Kroger's premises.

This series of points tenders the complaint that the court assumed Selman was the agent of Brown and Kroger. But, having tendered Selman, Kroger established Brown's direction to him to hold the car on his lot until the damages caused by the car had been paid. With Brown's agency being admitted, the point loses its force.

The general rule that agency cannot be proved by the declarations of the agent has no application to testimony given upon the trial by the alleged agent as to the fact and extent of his authority. Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54, 57 (1958); Yellow Cab Co. v. McCloskey, 82 S.W.2d 1042, 1043 (Tex.Civ.App., 1935, err. dism.); Freeborn v. Davis, 122 S.W.2d 645, 647 (Tex.Civ.App., 1938, no writ); Autrey v. Linn, 138 S.W. 197, 198 (Tex.Civ.App., 1911, err. ref.); Gibson v. Gillette Motor Transport, 138 S.W.2d 293, 294 (Tex.Civ.App., 1940, err. ref.); Gallop v. Seagoville Investments, Inc., 417 S.W.2d 727, 729 (Tex.Civ.App., 1967, err. ref. n.r.e.); 3 C.J.S. Agency § 324, p. 287; 2 Restatement, Agency, § 284, Comments (a) and (e). ¹

There is no dispute but what Brown was Kroger's agent (its store manager) at the time and place in question. The jury found that he was acting in the course and scope of his employment when plaintiff's car was taken from Kroger's premises. Selman testified, and it stands undisputed in the record, that he was directed by Brown to take the car out of the window, take it to his storage lot, and hold it there.

Thus, under this record, defendants' reliance upon Neeley v. Southwestern Investment Company, 430 S.W.2d 465 (Tex.Sup., 1968) is unavailing. The points relating to Selman's agency are, therefore, overruled.

The next series of points challenges the findings on exemplary damages and we state the substance of the special issues before setting out the contentions: Special Issue No. 6 found that the plaintiff was entitled to exemplary damages against the defendant, Brown. ² Special Issue No. 7 set the amount of the exemplary damages at the sum of $3,925.00.

The first point in this series (No. 5) asserts that there was no evidence to support the answer to Special Issue No. 6; the second (No. 6) claims that there was insufficient evidence to support such answer; and the third (No. 7) contends that the answer thereto is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Points 8, 9, and 10 make identical complaints with reference to Special Issue No. 7, while Point 11 complains of the action of the court in overruling the motion for judgment non obstante veredicto because there was no evidence that the conduct of Brown was 'willful, malicious or negligent to such a degree that he was acting in conscious disregard of the rights of the plaintiff.'

In passing upon the 'no evidence' points, we consider only the evidence favorable to the findings of the jury. In passing upon the insufficiency of the evidence points and those contending the findings of the jury were contrary to the weight and preponderance of the evidence, we consider the entire record.

Defendants' statement under this series of points, being commendably brief, is reproduced in its entirety:

'Immediately after the occurrence in question, there is evidence that Len Brown, manager of the Kroger store, informed both the plaintiff and Merl Selman, the wrecker operator, that he intended to hold plaintiff's automobile for damages sustained by the glass window through which plaintiff's automobile was driven by Welton Teal. There is also evidence that Len Brown reiterated his position to John Tatum, one of the attorneys for plaintiff, a new days after the occurrence in question. Merl Selman also testified that Len Brown advised him to release plaintiff's automobile...