Montgomery Ward & Co. v. Kirkland

• Decision Date: 07 December 1949
• Docket Number: No. 12016,12016
• Parties: MONTGOMERY WARD & CO., Inc., v. KIRKLAND.
• Court: Texas Court of Appeals

Page 906

225 S.W.2d 906

MONTGOMERY WARD & CO., Inc., v. KIRKLAND.

No. 12016.

Court of Civil Appeals of Texas, San Antonio.

Dec. 7, 1949.

Rehearing Denied Jan. 4, 1950.

Davenport & Ransome, Brownsville, David L. Dickson, Chicago, Ill., Wm. A. Voss, Kansas City, Mo., for appellant.

Kent, Brown, George & Van Dresar, Harlingen, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Thomas W. Kirkland against Montgomery Ward and Company, Inc., seeking to recover damages suffered by him as a result of an alleged malicious prosecution of himself by defendant for the alleged offense of embezzlement. The trial was to a jury and judgment was entered upon the verdict of the jury in his favor in the sum of $7,500. From that judgment Montgomery Ward and Company, Inc., has prosecuted this appeal.

Appellant's first contention is that the trial court erred in not granting its two motions for instructed verdict and its motion for judgment non obstante veredicto.

Appellee, Kirkland, had been an employee of appellant from 1940 until the latter part of September, 1947, with the exception of about two years spent in the Army. He had been manager of Department 66, Furniture, and Department 72, Floor Covering. He voluntarily left appellant's employment the last of September, 1947, and went into the floor covering business with a man named Allison, under the name of Al-Kirk Floor Covering. This establishment was about one-half a block from the store of appellant in Harlingen, Texas.

Some time in November, 1947, one J. A. Phillips, a traveling auditor of appellant, came to Harlingen to make an audit of appellant's store there. As a result of this audit Phillips found a shortage in Department 72 of some $3,000. Also he was informed by one Bowling, the delivery man, that he had delivered some four or five rolls of linoleum from the store to the Al-Kirk establishment, at the direction of appellee, Kirkland, but was not given a delivery ticket for this linoleum as was customary. The linoleum was valued at about $150 per roll. Phillips checked the sales in Department 72 and did not find a record of a sale of this linoleum. He did, however, find a sale to appellee of four rolls of linoleum in the mail order department, which showed that appellee had ordered this linoleum from the Fort Worth Mail Order Store on August 22, 1947, and that the linoleum had been delivered to appellee on August 28, 1947. Phillips stated that he decided these were two entirely separate transactions, as one occurred in August and the other in September, and were in two very different departments, the mail order business being carried on as an entirely separate business from that of the local retail store.

Phillips conferred with F. T. G.raham, County Attorney of Cameron County, and as a result of these conferences Kirkland was indicted, charged with the offense of embezzlement of four rolls of linoleum from Montgomery Ward and Company, Inc. This indictment was afterwards dismissed on motion of the State, and the present suit for malicious prosecution followed.

The cause was submitted to the jury on five special issues, in answer to which the jury found, in effect, as follows:

(1) That Phillips, in communicating with the County Attorney, failed to advise the County Attorney of the purchase of linoleum made by Thomas W. Kirkland on August 20, 1947.

(2) That at the time of such communication, Phillips believed that such evidence of sale was a material fact.

(3) That the omission was intentional, or actuated by a reckless disregard of the rights of Kirkland, amounting to an intentional wrongful act.

(4) That Phillips was acting within the scope of his employment.

(5) The amount of damages was fixed at $7,500.

The essential elements of a malicious prosecution which apply here may be stated as follows:

First: The commencement of a criminal prosecution against the plaintiff;

Second: Its causation by the defendant;

Third: Its termination in favor of the plaintiff;

Fourth: Plaintiff's innocence of the crime charged;

Fifth: The absence of probable cause for such proceeding;

Sixth: The presence of actual malice therein; and

Seventh: Damages resulting to plaintiff by reason thereof.

All of these elements may be regarded as here shown, except the fifth and sixth.

The question of the want of probable cause was not submitted to the jury. The facts that might have a bearing on this element are largely undisputed and therefore 'probable cause,' vel non, becomes a question of law to be decided by the trial court in the first instance, and by us in the second instance. Ramsey v. Arrott, 64 Tex. 320; Reed v. Lindley, TexCiv.App., 240 S.W. 348; Forbess v. Elliott, Tex.Civ.App., 230 S.W. 888, 28 Tex. Jur. p. 466, § 11, and p. 503, § 37.

Such evidence is as follows: On August 22, 1947, appellee placed an order for four rolls of linoleum with the Mail Order Department of appellant's store in Harlingen. The store records in that department indicated this linoleum was delivered to appellee on August 28, 1947. Appellee testified that instead of removing the material from the store at that time, he took it upstairs and place it behind the elevator, where it remained for three or four weeks or longer, but this explanation was not known to Phillips at the time he instituted the prosecution. Some three or four weeks later appellee directed Mr. Bowling, who was the delivery man for appellant's store, to deliver the linoleum to his establishment at 213 North First Street, Harlingen, Texas. Bowling received no delivery ticket for this merchandise, as was customary and proper for such deliveries. A week later Bowling delivered two rolls of linoleum to Allison, on the order of appellee. Bowling received no delivery ticket for this delivery, although appellee gave Bowling a cash register ticket. This ticket contained no reference to the type of merchandise for which it was issued.

The audit which was made by Phillips took about four and one-half weeks and covered the period from January 31, 1947, the date of the last audit, to November, 1947. It disclosed a shortage of some $3,000 in Department 72. The auditor made such checks as it was reasonably possible for him to make and found no reason for the shortage. The shortage was a dollar and cents shortage. It was impossible to determine from such an audit what items were short, due to the fact that cash register receipts do not give the merchandise sold. It was unlikely that this shortage was caused by shoplifiters, as most of the merchandise in Department 72 was of a heavy nature and not subject to shoplifting. On further investigation Bowling, a delivery man for appellant, revealed to the auditor that he had made a delivery to appellee at Allison's establishment without receiving the usual delivery tickets. Appellee had been sick and had been away from the store for some four or five weeks during June and July, 1947. Phillips checked the Mail Order Department and found that appellee had made a purchase of four rolls of linoleum on August 24, 1947, and had received delivery thereof on August 28, 1947, and Phillips decided that the August delivery of linoleum and the September delivery of linoleum were two separate and independent transactions. Phillips then sought advice of F. T. Graham, Esquire, the County Attorney of Cameron County, and told him all that his audit and...