Marathon Oil Co. v. Salazar , 1984 Tex. App. LEXIS 4755 ( 1984 )

EVANS, Chief Justice,

dissenting.

In my opinion the court’s definition of “probable cause” does not, under the particular circumstances of the case, require the reversal of the trial court’s judgment and a new trial.

The court’s charge on probable cause authorized the jury, in deciding whether the appellants had made a full and fair disclosure of all material facts, to consider all facts, either known to or later discovered by the appellants, that would have affected the prosecuting authority’s decision to prosecute or to continue to prosecute the charge against the appellee. This, according to the court’s charge, would include any facts that the appellants may arbitrarily have refused to seek out or investigate, if a reasonable person would have sought or investigated such facts.

I agree with the general statement of the law in the majority opinion that a complainant is not required, before reporting a suspected crime, to inquire of the suspected party whether he has some alibi or explanation. Neither do I question, as a general statement of the law, that if the complaining party makes a full, fair, and complete statement to the prosecuting authorities, he is under no duty to investigate the matter further. I also recognize that, in determining probable cause, the question is not what the actual facts were, but what the complaining party honestly and reasonably believed them to be.

I do, however, disagree with the conclusion reached in the majority opinion that these general statements of law control the disposition of the instant case. Here, the appellants took affirmative steps to assure the arrest and prosecution of the appellee, and their actions extended beyond the mere reporting of a suspected crime to the authorities. Therefore, in deciding whether probable cause existed in this ease, the jury was entitled to consider the actions of the appellants both “at the beginning and during the course of” the prosecution. See, e.g., Sullivan v. O’Brien, 85 S.W.2d 1106, 1114 (Tex.Civ.App.-San Antonio 1935, writ ref’d).

The appellants admitted that when they first learned that the appellee had a cornea-long tool in his garage, they had no knowledge of any theft of such equipment. Then, even after they had determined that the tool did not belong to their company, they initiated their own investigation to determine whether it had been stolen. There was testimony that the appellants already had decided to fire the appellee when they caused him to be arrested, even before his guilt had been established. They also testified that they intended to carry out a thorough investigation of the matter after the appellee was arrested.

After filing the complaint, the appellants took it upon themselves to call the police and to give them information in aid of their locating and arresting the appellee. They also caused a notation to be made on the complaint, instructing that they be notified as soon as the appellee was arrested. On the very morning after the appellee’s arrest, the appellants’ inquiries revealed to them that the comealong had probably not been stolen and that it had merely been loaned to the appellee. Nevertheless, the appellants fired the appellee and never withdrew their complaint.

Even after learning of the probable innocence of the appellee, as a result of their own affirmative investigative efforts, the appellants continued to press their effort to have the prosecution continue. The appellants appeared at the first hearing of the case, knowing that the tool had probably not been stolen, but they did not disclose such exculpatory information to the prosecuting officials. Neither did they object to the continuance and rescheduling of the hearing. Even after dismissal of all charges against the appellee, the appellants tried to persuade the person who had exonerated appellee to sign an affidavit about his part in the case; however, that person refused to sign the affidavit, because it presented an incomplete and distorted picture of what had occurred.

The appellee presented competent evidence to negate the existence of probable cause, and that proof created a fact issue for the jury’s determination. See Akin v. Dahl, 661 S.W.2d 917 (Tex.1983). In reaching its decision on that issue, the jury was entitled to consider all of the above-mentioned circumstances tending to show that the appellants had acted in bad faith, Earn v. Grocer Supply Co., 580 S.W.2d 17 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ), including the fact that the appellants chose to institute the criminal proceeding in the justice of the peace court, rather than with the police or the sheriff’s department, which had greater investigatory capability. The jury was also entitled to consider the undisputed evidence establishing the appellee’s good character and reputation. Jameson v. Zuehlke, 218 S.W.2d 326 (Tex.Civ.App.-Waco 1948, writ ref’d n.r.e.).

From all such circumstances, the jury could reasonably have found that the appellants actively involved themselves in the prosecution of the appellee, without the existence of probable cause, and for the sole purpose of establishing a basis for terminating the appellee’s employment. Under the pleadings and the evidence, the court’s charge properly authorized the jury to consider not only those circumstances existing at the time the complaint was filed, but also those relating to the appellants’ involvement in the continuation of the prosecution.

The appellants contend on appeal that the court’s charge erroneously imposed the duty upon them, after charges were filed, to continue the investigation in an effort to obtain exculpatory evidence. A reading of the objections made to the court’s charge during trial leaves doubt as to whether the trial court was adequately apprised that this constituted appellants’ objection to the charge. However, even assuming that the court’s definition is susceptible to that interpretation, and therefore erroneous, and that error was preserved by proper objection, no reversible error is presented, because the definition may be given a construction consistent with the law and the facts, and there is no showing that the jury was misled by the court’s language.

A trial judge is given considerable discretion in framing legal definitions for submission to the jury, Newspapers, Inc. v. Love, 367 S.W.2d 185, 203 (Tex.Civ.App.-Austin 1963), rev’d on other grounds, 380 S.W.2d 582 (Tex.1964), and if a charge is susceptible to more than one interpretation, it will be presumed that the court intended the correct interpretation. See Loving County v. Higginbotham, 115 S.W.2d 1110, 1114 (Tex.Civ.App.-Eastland 1938, writ dism’d); 3 R. McDonald, Texas Civil Practice in District and County Courts, sec. 12.37.1 (1983). The court’s definition of probable cause, considered in the light of the pleadings and the evidence, was subject to a lawful construction, and the appellants have not shown any reasonable likelihood that the jury was misled thereby. See Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949); compare, Earthman’s, Inc. v. Earthman, 526 S.W.2d 192, 205-06 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

I would overrule the appellants' first point of error, and because the trial court’s judgment may be supported on the finding of the jury to the first special issue, I would affirm the judgment.