Marathon Oil Co. v. Salazar

• Citation: 682 S.W.2d 624
• Decision Date: 15 November 1984
• Docket Number: No. 01-82-0448-CV,01-82-0448-CV
• Parties: MARATHON OIL COMPANY, R.K. McCord, C.G. Horner, T.W. Slicker, and M.G. Raiford, Appellants, v. Paul F. SALAZAR, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 624

682 S.W.2d 624

MARATHON OIL COMPANY, R.K. McCord, C.G. Horner, T.W Slicker, and M.G. Raiford, Appellants, v. Paul F. SALAZAR, Appellee.

No. 01-82-0448-CV.

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

Nov. 15, 1984.

Rehearing Denied Dec. 20, 1984.

Russell Serafin, Mills, Shirley, McMicken & Eckel, Galveston, for appellants.

A. Lee McLain, McLain & Niehaus, Wayne H. Paris, McLain & Niehaus, Houston, for appellee.

Before EVANS, C.J., and DUGGAN and BASS, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a judgment based on jury answers to special issues in a suit for malicious prosecution, libel, and slander, awarding plaintiff-appellee, Paul F. Salazar, compensatory and punitive damages totaling $765,000.

Salazar, a seven-year employee of the appellant, Marathon Oil Company, sued Marathon and the four individual appellants, all of whom are Marathon "officers, employees or managing agents," after he was charged with, arrested, and fired for the theft of a tool, a "Coffing 1 1/2 ton Comealong," owned by a Marathon sub-contractor and found in appellee's garage. Later investigation revealed that an employee of the sub-contractor had consented to loan the tool to Salazar. The criminal complaint against Salazar was dismissed by a justice of the peace on an assistant district attorney's motion some two weeks after it was filed and prior to the hearing of a once-reset examining trial.

Appellants urge forty-two points of error, combined into five consolidated points, each attacking one of the court's five special issues and the accompanying definitions and instructions.

By their answer to Special Issue No. 1, the jury found that appellant Marathon and each of the four individual appellants maliciously prosecuted Salazar for the crime of theft. In their first consolidated point of error, the appellants contend that the trial court erred in overruling their objections and tendered issues, instructions, and definitions to Special Issue No. 1 because the charge: (1) failed to submit ultimate and controlling issues of the malicious prosecution cause of action; (2) informed the jury of the effect of their answers; (3) constituted a direct comment on the weight of the evidence; (4) failed to submit proper and correct definitions as to the law; (5) eliminated the plaintiff's burden to prove malicious prosecution by a preponderance of the evidence; and, (6) in effect, instructed the jury to return a verdict for the plaintiff.

Because the definition of "probable cause" submitted by the trial court was erroneous, we will address that sub-part of this point of error first.

The court's definition of "probable cause" read as follows:

"Probable cause" requires a full and fair disclosure of all material facts, which include all facts known to complaintant(s) [sic] that would have affected the prosecuting authority's decision to prosecute or not prosecute Paul Salazar and all facts later discovered that would have affected the prosecuting authority's decision to continue or not continue the prosecution; they also include facts that the complaintant(s) [sic] arbitrarily refuses to seek or investigate, which a reasonable person would have sought or investigated. However, unless the complaintant [sic] discloses to the prosecuting authority all material facts known to him relating to the matter, "probable cause" does not exist. (Emphasis added).

Appellants urge that this definition of probable cause erroneously implies that a complainant has a legal duty not only to make a full and fair disclosure to the prosecuting authority before filing a criminal complaint, but also to continue to investigate and disclose facts discovered after the filing of a complaint. There is no such duty.

A party filing or causing the filing of a criminal complaint does so upon probable cause where, in good faith, he makes a full and fair disclosure of the facts and circumstances known to him at the time and the complaint is thereafter filed; however, unless he acts in good faith in disclosing to the prosecuting attorney all material facts known to him, probable cause does not exist. Eans v. Grocer Supply Co., Inc., 580 S.W.2d 17, 21 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ); Ada Oil Company v. Dillaberry, 440 S.W.2d 902, 910 (Tex.Civ.App.--Houston [14th Dist.] 1969, writ dism'd). Probable cause has been defined as a state of mind in that the facts are regarded from the point of view of the party prosecuting; the question is not what the actual facts were, but what he honestly and reasonably believed them to be. Green v. Meadows, 517 S.W.2d 799, 810 (Tex.Civ.App.--Houston [1st Dist.] 1974), rev'd on other grounds, 524 S.W.2d 509, appeal after remand, 527 S.W.2d 496 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.).

A private citizen has no duty to inquire of the suspect whether he has some alibi or explanation before filing charges. Armendariz v. Bill Sears Supermarket No. 1, 562 S.W.2d 529, 531-32 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.); Montgomery Ward & Co., Inc. v. Kirkland, 225 S.W.2d 906, 909 (Tex.Civ.App.--San Antonio 1949, writ ref'd n.r.e.); Deaton v. Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex.Civ.App.--Beaumont 1942, writ ref'd w.o.m.). Further, once a person fairly discloses the facts in his possession to the prosecuting officer, he has no duty to make further investigation; it is the duty of the officer to investigate further if he thinks necessary. Carswell v. Southwestern Bell Telephone Co., 449 S.W.2d 805, 817 (Tex.Civ.App.--Houston [1st Dist.] 1969, no writ).

Appellants' tendered definition of "probable cause" read:

"PROBABLE CAUSE": The existence of such facts and circumstances as would excite the belief in another person of a reasonable mind acting on the facts or circumstances within his knowledge at the time that the Plaintiff was guilty of some form of the offense of theft, as hereafter defined. You are further instructed that the question of probable cause does not depend upon the guilt or innocence of the Plaintiff.

This requested but refused definition is correct, and is essentially identical to that approved by the Texas Supreme Court in Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983).

Rule 277, Tex.R.Civ.P., authorizes the trial judge to submit such explanatory instructions as are "proper" to aid the jury in answering special issues without giving a general explanation of the law. However, the court must define legal and other technical terms, Johnson v. Whitehurst, 652 S.W.2d 441, 447 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.), and a charge which does not instruct correctly as to the law applicable to the facts is improper. Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 453 (Tex.1978).

The court's instruction failed to inform the jury that probable cause depends upon what the appellants knew when they filed the complaint. Events prior to the institution of the proceedings must be examined, and only those events, to determine if the appellants had probable cause to act. Akin at 920.

There is no evidence in the record that the appellants knew, before filing the criminal complaint, that the appellee had permission to borrow the tool. The evidence showed that, at the time the complaint was filed, (1) the individual appellants knew that appellee had in his garage a piece of equipment that belonged to Marathon's sub-contractor, and (2) the sub-contractor's personnel had verified to the individual appellants, apparently erroneously, that there had been no loan of this equipment to appellee. Only after the appellee had been arrested and released on bond did the sub-contractor's employee, Judd Hendricks, recall having spoken to the appellee about borrowing the equipment.

As worded, the court's instruction failed to pinpoint the time when the probable cause question was to be answered. It erroneously allowed the jury to find a lack of probable cause based on events that occurred subsequent to the filing of charges and appellee's arrest. Additionally, this instruction implied that the appellants had the duty to confront the appellee with their suspicions before filing the charge. This is a misstatement of the law, and such an omission does not establish the lack of probable cause. Armendariz, 562 S.W.2d at 531-32.

While appellants' actions both before and after the filing of the criminal complaint may be considered by the trier of fact as evidence that the appellants acted with malice in prosecuting the appellee, and while malice may be inferred from the want of probable cause, Adams v. Thomas, 638 S.W.2d 933, 937 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.), the want of probable cause can never be inferred from proof of malice. Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 500 (Tex.Civ.App.--Dallas 1971, no writ); Biering v. First National Bank, 69 Tex. 599, 7 S.W. 90 (1888).

The court's charge was a substantive misstatement of the definition of "probable cause," and its submission constituted error which was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434; Gulf Coast State Bank v. Emenhiser, 562 S.W.2d at 453-54.

We have examined the complaints contained in the remaining sub-parts of appellants' first consolidated point of error and find that they are without merit. Appellants' first consolidated point of error is sustained as to that portion complaining of the erroneous definition of "probable cause."

Appellants' second consolidated point of error relates to the trial court's charge on slander in Special Issue No. 2. However, any error in the submission of this issue was rendered moot by the jury's finding against the appellee on this issue. Furthermore, the appellants have not complained on appeal that the submission of Special Issue No. 2 in any way affected the submission of the other issues in the court's charge. Appellants' consolidated point of error two is...