*1 CHRISTOPHER, Appellant, Charles S. SYSTEMS, COMPUTER
GENERAL
INC., Appellee. 19238.
No. Texas, Appeals of Civil
Court
Dallas.
Aug. 1977. 15, 1977. Denied Nov.
Rehearing
The evidence from shows General equipment Surety, time to time sold customers, which leased it to various provided that General maintenance service parties lessees. The did business Agreement,” under a “Master which Sales provided follows: collect, as agrees SURETY that it will agent mainte- monthly for GENERAL payments, nance without fee whatsoever pay SURETY. will SURETY payments to GENERAL (5) days within five after without receipt, *4 any deduction whatsoever. alleged provi-
General under the above contract, Surety sion had collected maintenance payments from lessees which General, had pay it failed to over to these funds Surety were trust funds which funds, commingled had its with own Surety the other and officers of had caused the funds to be and dissipated appropriated person- had them their own purposes, al and business and more $500,000 than of such funds had been lent Collie, McSpedden R. L. McSpedden, & given or Christopher. defendant Roberts, Dallas, appellant. for response special issues, jury In Carlton, Dallas, appellee. Dean for (1) found amount that the of maintenance by Surety paid funds collected and GUITTARD, Chief Justice. $117,190.97,(2) General was that such col- were Surety agent lections made for brought This suit was General Com- General, (3) (not pertinent), (4) that mainte- puter Systems, supplier computer of nance funds so collected commingled were equipment, Industries, against Surety Inc. Surety’s funds, with general (5) that such Christopher, president Charles Surety’s commingled or a part funds thereof were stockholder, and sole for misappropriation by Christopher, (6) diverted that Chris- of alleged funds have been collected topher $125,000 diverted more than of such Surety as for agent General and diverted commingled funds. Other findings, includ- by Christopher personal for his use. After ing concerning those exemplary damages, General, verdict favorable to the claim in opinion. will noticed later this against severed, Surety judgment against rendered on the 1. Agent Funds Collected as $117,190.97 verdict for actual $150,000exemplary damages. ap- On this appellant We consider first Christo peal Christopher’s principal pher’s contentions are attack special on the answer to issue pleadings that the and evidence are insuffi- number one as without sufficient support damages, findings cient to of the evidence. this By answer the $117,190.97 that the was im- exemplary-damage Surety issue found that collected of proper, and that the court erred in admit- maintenance which it to pay funds failed ting evidence of conviction of a over to General. After review of the evi which, asserts, dence, crime did not involve he we conclude that there is sufficient turpitude. moral affirm. finding. evidence proof was that nei- rentals had not problem The basic been received. Apparently, Surety adequate rec- nor Surety keep ther General did a record past of rentals fees collected ords of the maintenance due. then Greenberger inferred that if the shows that lessees Surety. The evidence case, rental particular was not collected in a monthly payments equipment made the corresponding maintenance fee for that owing both the rentals Surety covering collected, month was not and that if the maintenance fees collected Surety and the collected, rental was the maintenance fee Surety When re- by Surety for General. was collected. then He totaled the uncol- deposited it them payments, ceived these lected maintenance fees so determined and operating general funds and failed subtracted from that amount the total bill- record of how much keep a careful ings for fees to figure obtain a payments was from mainte- each actually the maintenance fees collected. from distinguished nance as rental. Chris- basis, taking On that after into account that the maintenance fees topher testified Surety certain credits to which was entitled Surety went into accounts and that several stipulation according parties, to a or established method policy had no and, adjustments allowing for not in He admitted that accounting for them. Greenberger controversy, arrived at a net allocate these collections was difficult to $117,190.97, owing amount to General of and funds between funds owed by the the amount found answer to Surety’s accountant owed to General. figure This issue number one. is less than concerning a summary Willke testified *5 the amount owed to General as evidenced Surety’s records of mainte- had made from by Greenberger’s Surety’s summaries of collected, testimony but his nance fees records. cannot be taken based these summaries testimony view of other as conclusive in computation attacks inadequacy Surety’s rec- concerning the Greenberger’s by challenging inference that Surety testified that Christopher ords. the rentals Surety’s record of not collected difficulty determining which sometimes had proof was of the maintenance fees collect it and which to belonged to General. funds course, itself, By ed. did not consti accountant, Harry Greenberger, General’s proof. proof, tute such There was other to make an extensive permitted had been however, find circumstantially which we books, Surety’s and he tes- investigation of sufficient Greenberger’s infer the summaries he had concerning tified fees, ence. The like the maintenance rent made, agree which not Willke’s did als, paid monthly by were the lessees to Greenberger also testified that summaries. Surety. Christopher admitted that verify all the book entries he was unable to maintenance fees and rentals were billed to at or entries made original from documents same the lessees on the invoices and were transactions and that the time together. collected There is no evidence of records he examined were respects some instance when one received without Surety’s also testified that inconsistent. He Surety duty the other. had the as general ledger for records, particularly pay collect and agent General’s over the 1974, kept in accordance with nor- were not fees, position maintenance it is in no practices. bookkeeping mal payment assert that when insuffi situation, principal re- General’s In this both, payment cient to cover should be proof. Green- liance is on circumstantial credited to the rental rather than to the concerning the amount berger testified Christopher, Surety’s as fee. billed General to Sure- maintenance fees officer, posi chief executive is in no better payable by lessees representing amounts ty, tion. agent. In order Surety as General’s Moreover, Surety, as General’s billings of these had part what establish agent, keep and maintain the duty collected, he undertook to determine been monthly separate as a and identi- which of the maintenance funds records Surety’s from account for the benefit of General. because he money fiable received corpo- from the ration. He Searle-Taylor Machinery Co. v. Brown Oil insists that this cannot be done unless the Tools, (Tex.Civ. corporation has become insolvent and has doing business, ceased writ ref’d n. or unless the App. [1st Dist.] - Houston stockholders have “denuded” the e.). corpora- testi According Christopher’s r. own assets, tion of its and that these facts are mony, with that Surety comply did not neither alleged proved. nor duty. Surety Neither nor of tending fered any evidence to show accept cannot this analysis be rentals were received from who did lessees cause the maintenance funds were not sim not at the same time the corre pay also ply a debt that Surety owed to General. sponding maintenance fee. Under these Under the express provision of the “Master circumstances we the evi conclude Agreement” Sales above quoted and also provides accept dence a rational basis for under the jury’s finding in answer to issue ing Greenberger’s computation, at least as number two that the maintenance funds prima proof facie of the amount of mainte were by Surety collected agent for Gen nance funds collected Surety and not eral, these belonged General, funds paid contrary over to General. A holding to Surety. The evidence shows that permit Surety would and Christopher commingled General’s funds with its own advantage inadequacy take of Sure appellant Christopher knew he ty’s own records to avoid accountability for was withdrawing funds from the commin funds collected and held as agent gled General’s account. To the extent that Christo and diverted pher to his own use, diverted such funds to his own personal use. was diverting General’s funds as well as funds, Surety’s and he directly is liable Appellant attacks Greenberger’s figures General for his own acts rather than for the on the additional ground that they include acts of Surety. Searle-Taylor Mach. Co. v. amounts when, collected before March 1975 Tools, Inc., Brown Oil 338-39 S.W.2d according to a letter from lawyer, General’s ( iv.App. [1st Dist.] Tex.C - Houston all accounts were settled Surety gave *6 e.). By withdrawing writ ref’d n. r. for his agreed due, note for the amount which was personal that he knew to use funds be com subsequently paid. We are unable to deter- mingled, personally responsible he became mine from this letter testimony and the commingling for the to the extent of the relating to it whether it anything had to do As funds withdrawn. sole stockholder and with maintenance funds collected Sure- officer, chief executive Christopher had ty. $383,473.03 The amount of stated as of the evidence concerning disposi control the “outstanding balance” apparently is tion of the funds. He admitted that he had based on other transactions between Gener- complete knowledge and control Surety’s Surety. least, al and At Greenberger and he was responsible affairs. Thus for the jury might it, properly regarded have so and, commingling, consequently, we hold so present far as the record shows. Conse- that he had the burden of proving how quently, we cannot say that this letter es- he much of the funds received belonged to tablished conclusively inaccuracy of Surety rather than to General. See Des $117,190.97. Greenberger’s figure of Dessommes, sommes v. (Tex.Civ.App. writ ref’d n. r. - Dallas 2. Diversion of Commingled Funds e.), 40, 156 Logan Logan, and cf. 138 Tex. We next consider attack on (1941) (dictum). 510-11 S.W.2d jury’s finding in answer num- to issue he made such proof, he is liable to Gen appellant ber five that diverted the com- eral for the full amount of General’s funds or a mingled part sup- funds thereof. In commingled up so to the amount of the attack, port appellant of this argues him, that commingled which, funds diverted found, the effect of the suit is to hold him as a jury as the exceeded the amount corporate liable for the debts commingled. shareholder General’s funds Under circumstances, liability Appellant’s his need assertion of a conflict in proof Surety jury’s was insol- predicated findings that is likewise without foun that dation. He argues ceased do business or that since the jury vent and found in answer to issue number had been “denuded.” one that assets
the maintenance funds collected and not Accordingly, we have examined the paid $117,- over to General amounted there is to determine whether evi record 190.97 and also found in answer to issue fact, Christopher did, divert to dence number five that the amount of the com $125,000 more mingled own use than commin funds by Christopher his diverted funds, $125,000, in answer gled found to more than there is a conflict in findings these five. find the evidence because the commingled number issue are the funds same as maintenance jury’s answer funds. sufficient The obvious answer to this contention is Christopher issue. himself testified that after the maintenance funds were collected were funds commingled Surety’s funds, with Surety’s general with deposited operating commingled funds amounted more than enterpris and that either he or other funds the maintenance funds alone. Consequent by him benefited from more es controlled ly, there is no between conflict these find $500,000 from such than withdrawn funds. ings. judgment against The rendered Moreover, the evidence shows that Christopher actual Surety’s was maintained on books account $117,190.97 consistent amount is $540,000 showing more than of withdrawals findings. both of these gen from its employees its officers withdrawals, these Christo eral funds. Of 3. Conspiracy ninety per pher admitted that more than Appellant’s next attack on the verdict He were attributable to him. also cent upon the answer to issue number seven in $50,000 reported admitted which the found “that Charles S. personal his income these withdrawals on Industries, $120,000 on for 1973 and his tax return conspired withhold maintenance funds ample This testimony for 1974. return Computer Systems, from General Inc.” jury’s finding This issue was submitted apparently in con- $125,000 to his own use more than diverted nection with General’s claim for commingled funds. damages, since it is followed an issue inquiring whether such conspiracy also that Gener contends deliberate,” “willful and and another in- plead personal basis for his al did not *7 quiring whether exemplary should Surety. peti the debts The liability for Appellant’s objection be awarded. to the alleged Surety that received the main tion issue is that pleadings sup- there are no agent, as General’s tenance funds it, that port there is no evidence to support Christopher Surety and other officers of jury’s finding, the and that the evidence is commingled funds to with caused the be finding. insufficient Surety, Christopher funds of and that other “had said appropriated the others funds and Appellant’s contention concern uses, personal business their own lack of ing pleading is that General did not $500,000 in excess has been lent to-wit: plead Christopher conspired with the or to activities given or Industries, corporate defendant, Surety plead this to him.” We hold that charged only conspired but that he with its number submission of issue ing supports officers, Gordon, George Dan Dillman and found recovery by amount dissipate misappropriate five the mainte allege wrongful since its does jury, nance funds collected for General. can We belonging of funds not consider because by argument diversion this it was preserved by proper objection not to General. objections charge The to the topher trial court. made express agreement with facts, in the statement of as rule Gordon, are shown Dillman or or some other identifia individual, 272 of the Texas Rules Civil Procedure ble to divert the maintenance objections permits. contrary General, now These are funds collected for there is no evi following prohibitions in rule to the 274 of dence of a conspiracy. Rules of Civil Procedure:
the Texas We do accept not this view. The objection by Where the made the com- charge defines “conspiracy” as “a combina party, . . . plaining opin- is in the tion of persons by two or more concerted appellate ion of the court obscured or action accomplish some purpose unlawful concealed voluminous unfounded ob- accomplish or to some purpose lawful jections, objection . . . . unlawful means.” It defines “person” as shall be untenable. objection No to one including corporation as well as a natural charge part may adopted person. objection No was made to either of applied part charge other these definitions. Issue number seven does only. reference inquire not whether appellant conspired with Gordon, Dillman or objection with The to issue but rather number seven vio- inquires whether he conspired this rule in with respects. lates two In the first Industries, Inc. Since the place, only objection defendant’s was in to this is- “person” structed that the term nothing as used in sue is more than a reference to the definition of objections. objection The entire included a cor is as poration, appellant and since three, presi was the follows: “The same the first three dent and chief executive objections Surety, officer of Special Issue No. 7.” The stockholder, as well as its sole objections question three referred to are apparently is whether there is evidence to show that respect those made with to the first special issue, appellant acts of the including in his objection individual that issue capacity “combined” with supported by is not the acts of the pleadings. In the corporation, acting place, through objection appellant second as its is obscured officer, chief to withhold the objections. voluminous unfounded The funds from General. objections reviewing three After repeated by same are ref- record, we conclude that there respect ample erence to the spe- first twelve evidence issues, this finding. cial issues—all Christo apparently, except pher admitted complete that he had those submitted at knowl request. defendant’s edge and control of Surety’s affairs. As an Consequently, objection we hold that this officer of Surety responsible he was preserved for review. Monsanto Co. v. Milam, Surety’s commingling of General’s funds (Tex.1973). 494 S.W.2d own, with its and he was responsible also consider, however, We must for the diversion of these funds to his own contentions answer to issue num use as an individual. In his individual ca is without support ber seven in the evidence pacity funds, he accepted commingled sup and that the evidence is insufficient source, knowing their and used them for his port finding, objections since these may purposes. own We hold that this evidence properly be made after verdict. Tex.R. is sufficient to show that there was a com 279; LaMark, Civ.P. Strauss bination between him as an individual and *8 (Tex.1963). Appellant argues 558 that corporation acted, for which he to with no “conspiracy” there is mention of a hold the maintenance funds from General. of facts other than the testimony statement It follows that the evidence is sufficient appellee’s Greenberger, of witness who ad support the answer to issue number seven that he did not of his mitted own knowl under the definition of “conspiracy” and that edge Christopher know had “con “person” charge. in the court’s any with Dillman or Gordon tó do spired” record, seems to take the view thing. present predicate a On that in the absence of evidence that Chris for exemplary damages might have been
706 General, payment by Surety of a debt theory of willful conver- on
established Christopher’s person but sion, finding conspiracy, of but rather to divert to without General a impose on belonging as submitted use funds to General and held the issues al submitted issues as wrongful burden. The a di greater agent. Such that jury establish by the answered un clearly and of funds was version General’s funds to his General’s Christopher diverted evi lawful, pleading thus the and the and the result use, was this diversion own detailed are sufficient estab dence above an his acts as between of a combination personal liability. Christopher’s lish Surety, of his acts on behalf individual and and delib- were willful and that these acts Damages Exemplary 4. found actual dam- jury has erate. Thus points ad group The next of deliberate a willful and ages as a result of jury’s by appellant concerns vanced and has wrong part of on ten that finding in answer to issue number wrong at for that punishment assessed his awarded should be exemplary sup- $150,000. ample evidence We find consider his com against him. We cannot Conceivably, in some findings. port these general charge is a plaints that this issue case, might be commit- error type of of the evi weight a comment on the permit as to “conspiracy” so defining ted in objection on these dence because of an individual the acts to consider charge before the grounds was made with his in combination his own behalf argu jury. principal to the His submitted in corporation, of acts as an officer nor pleading ment is that there was neither minds” case, “meeting of the some other which, fraud, malice, proof oppression of or be re- persons might two natural between recovery exempla is essential to of says, was sub- But since the definition quired. ry damages, citing Ogle Craig, 464 v. objection on that without mitted here found, (Tex.1971). since the has S.W.2d ground, effect, Christopher’s actions on his own use the Although petition does not with his acts as an in combination behalf defend “malice,” allege does term deliber- were willful and Surety, of officer willful, capricious, and tortu “by their ants General, we damage ate and resulted conduct, the willful specifically rous [sic] for elements of an award that all hold funds and the of trust misappropriation been established. damages have exemplary aforesaid, GCS, as are damage conspiracy judg also that no Appellant complains damages.” punitive plaintiff liable to con finding of be based on ment could exception special discloses no The record number seven in answer to issue spiracy of such an In the absence allegation. this conspir actionable “there can be no because allegation of we hold that exception lawful of a resisting payment acy in . . . misappropriation “willful contention, In obligation.” was suffi damage GCS” conspiracy Lehmann, 207 S.W.2d he cites Bartelt of the issue of submission cient to writ (Tex.Civ.App. Trans Tennessee Gas damages. exemplary - Austin against a ref’d), a suit on a note which was Moorhead, mission Co. v. trust, liability individual business in which 1966, writ ref’d (Tex.Civ.App. - Beaumont ground on the the trustees was asserted e.). n. r. payment they conspired prevent also that the evi conclude unpaid subscriptions for shares of their own finding supported the dence held that the alle of the trust. The court witnesses although none damages, insufficient to as gation “malice,” and none testified used the word it was “not liability because individual sert against of ill will Gener any expressions payment to resist the purpose unlawful any specific or part al on the legality.” regardless of its obligation, of an other than to General injury intent to cause here the inapposite because case is This *9 which, in part, at least be- money to take to resist simply is not alleged
707
misappropria
expenses
litigation,
Willful
this record.
of
longed
General.
Besides
a
justification is
property
tion of
without
withholding
deliberate
of this sum of
of
recognized ground
exemplary damages, money
is shown
the record to have
express finding
even
the absence of an
of
in
General
caused
severe financial distress.
Pontiac,
v.
Courtesy
Ragsdale,
Inc.
malice.
consequent damage,
though
The
perhaps
1975,
(Tex.Civ.App. Tyler
answer number 192, (Tex.Civ.App. 208 [1st Dist.] - Houston spiracy between 1975, writ); Corp. no Pan American Pet. v. from withhold the maintenance funds Gen 904, 370 908 Hardy, (Tex.Civ.App.- S.W.2d eral “willful and deliberate.” was 1963, e.). Moreover, Waco writ n. ref’d r. finding, attack appellant makes no on $150,000, found, the amount of as is not D. T. be taken as established. must disproportionate the finding of actual Carroll, 429, Corp. v. 256 432 Carroll S.W.2d damages $117,190.97. in the amount of 1953, writ (Tex.Civ.App. Antonio This ratio between actual exemplary - San e.); Corp. r. Pet. ref’d n. Western Gulf damages is important factor in deter Co., (Tex. Jelke & 163 860 Frazier S.W.2d mining whether an award of exemplary ref’d w. Civ.App. writ o. damages is excessive. - Galveston Southwestern Inv. m.). not finding merely This is Chris Neeley, Co. v. 452 (Tex. S.W.2d 707-08 such topher’s “wrongful,” action was as the 1970). Consequently, we cannot hold the regarded Ogle finding in as insufficient finding exemplary be exces damages. support exemplary It rather sive. type general of a tort of the finding willful ly support held sufficient an award of 5. Evidence of Conviction damages. International Bank complains also Holloway, ers Life Ins. Co. v. S.W.2d admission of his conviction for violation of (Tex.1963) (conspiracy by corporate the federal eavesdropping statute on the profits dealings officers obtain from ground that such conviction was not final corporation’s damage stock of other turpitude. did involve moral Ap stockholders); Earthman’s, Inc. v. Earth pellant insists prejudicial effect of man, 526 S.W.2d 208 (Tex.Civ.App.- this evidence is established substan 1975, writ) (conver Houston [1st Dist.] tial adverse verdict. We ap conclude that stock). corporate sion of pellant standing complain has no of this If we appellant’s should construe evidence, since did timely not make a attack issue raising number ten as objection in the He trial court. did raise question sufficiency of the evidence to trial by matter before a motion in li- eight, answer to issue number mine, overruled, which the court but we still could not sustain conten ruling pre motion not sufficient tion because our review of the record con appeal. serve error Hartford Acci ample vinces us that there is evidence to McCardell, Indemnity dent and Co. v. finding that the action of Sure (Tex.1963). ruling S.W.2d 331 When ty withholding and of main made, counsel was faced with tactical diverting tenance funds and such funds to objec He either raise his dilemma. could indeed, was, Christopher’s own use “willful again tion when the evidence offered and deliberate.” jury, knowing judge before the that the it,
Appellant complains already also that decided to overrule or he could $150,000 exemplary damages attempt to soften the effect of the aviard of evidence agree. by placing was excessive. We cannot Several the matter before the him panel. voir supporting factors this award are shown in self on dire He *10 708 course, accomplish a only purpose after evi- an unlawful or to the latter
chose
admitted
of the conviction had been
purpose
dence
lawful
unlawful means.”
objec-
the
did he make a formal
before
Surveying Corp. v. Nor
Schlumberger Well
Although
grounds
urged.
the
now
tion on
854, 856
Corp.,
tex Oil and Gas
problem,
with counsel’s
we
sympathize
we
concedes,
(Tex.1968).
majority
the
As the
under McCardell he has no
must hold that
in the
finding
persons participated
that two
standing to ask for a reversal on this
if we
conspiracy
only
supported
can
be
ground.
capacity
treat
in his individual
person
acting solely
one
6. Denial of Continuance
through
its officer
as the
Finally,
we note
com
person.
second
There is no evidence
plaint that the court abused its discretion in
Surety partici
agent
other officer or
overruling his motion for continuance on
pated
knowledge
alleged
in or
had
trial was set
two
ground
only
ele
conspiracy.
of the essential
“[0]ne
filed, prepara
months after the case was
required
conspir
to establish a civil
ments
complete,
trial were not
and coun
tions for
object
of the minds on the
acy
‘meeting
is a
sel for one of the defendants was unable to
”
Although
Id. at 857.
or course of action.’
in selection of the
because
participate
corporation may
“person”
be a
for
a
recently given
Appel
birth.
his wife
law, it does not have
purpose
conspiracy
has shown no harm from the court’s
lant
from the
separate and distinct
a “mind”
trial,
proceeding
with the
and the
action
Clearly,
agents.
officers and
minds
attorney
motion does not show that
the minds
meeting
there cannot be a
temporarily absent from the trial was coun
Thus, the
where there
but one mind.
present appellant
sel for the
rather than the
conspiracy
a
have refused to find
courts
Consequently,
other defendant.
we hold
acting
person was
only
where
one natural
of the trial was a matter
postponement
was the basis
plan which
in the scheme or
judge.
the trial
within the discretion of
though
even
alleged conspiracy,
argument counsel disclosed that
In oral
corporations
agent of two
was an officer or
setting
early
trial
made
were utilized
corporations
and both
agreed
parties
court and
in an
Corp. v.
Lockwood Grader
plan.
scheme or
hearing
application
on an
effort
to avoid a
Bockhaus,
270 P.2d
196-
129 Colo.
injunction,
probably
which
temporary
v. Walbrook
(1954);
Theatre Co.
97
Windsor
on the
necessary
would have been
if trial
(D.Md.
Co.,
396
F.Supp.
94
Amusement
course. We
merits had been set in normal
1951);
(4th
1950),
ON MOTION Naviera Owners, Tankship Ltd., v. Commonwealth holding our that the attacks 416, (S.D.N.Y.1970); F.Supp. 310 421 Beres findings of a supports jury’s evidence Yablon, 301, 305, v.will 6 N.Y.2d 189 N.Y. him and Indus- conspiracy between 661, 664, 531, (1959); 160 N.E.2d S.2d 533 tries, Inc., ground we have that Corp. Bockhaus, v. Lockwood Grader 129 rule in “undertaken to establish the Texas 339, 193, (1954). Colo. 270 P.2d 196-97 with corporation conspire that a can Even if these are taken to for cases stand officer the one chief executive when conspiracy the rule that ground not a of whole was the only actor in the transaction an recovery against acting individual in chief officer himself.” executive rule, capacity, more than one that as ap argument indicates a misun This here, plied only would mean defini our have derstanding ruling. of We tion of in conspiracy charge was too any establish rule. Our undertaken to such permitted broad to con peculiar decision is limited to the circum Christopher’s sider acts as an individual in language case and the stances of this combination his corporate with acts as a definitions, as accompanying issues and sub determining officer in the existence of a objection. mitted to the without We conspiracy. objection If such an had been agree by appellant decisions with the cited made, might given appro court have an to the a cannot corporation effect that con priate limiting might instruction or it have itself, spire many matter how of its submitted the damages issues on corporate agents may participate in the ac some other theory raised the evidence. Worley Kentucky, tion. v. Columbia ofGas objection no such made, ques our 256, (6th 1974); 491 F.2d 261 Dorsey Cir. tion is whether the evidence supports the 243, Chesapeake Ohio Ry., & 476 F.2d 245 findings on the seventh issue under the (4th 1973); Youngstown Cir. Pearson v. broad definitions For submitted. Co., 439, (7th Sheet and 332 442 Tube F.2d given, reasons we hold that it does. 1964); Cir. Supply Nelson Radio & Co. v. Moreover, Christopher’s wrongful since Motorola, 911, 1952), (5th 200 F.2d 914 Cir. liability conduct and his for actual denied, 783, 925, cert. 97 345 U.S. 73 S.Ct. findings, were established other Culberson, (1953);
L.Ed. 1356 Webb v. Hel only significance since the conspiracy Norton, ler F.Supp. & 357 924 findings in (N.D.Miss.1973); the context of this Johnny appeal Motor Maddox Co. Co., wrongful characterize his conduct as “will- (W.D. v. Ford Motor 202 F.2d 105 ful and for the Tex.1960). accept rulings purpose deliberate” of re- also the covering exemplary damages, certain trial construing federal courts we hold that jury’s findings, Anti-Trust Act as based on the requiring Sherman evidence of combination, conspiracy supports in restraint of be shown recovery trade exemplary damages, a concert inadequate of action between more than one however the evidence have person. Daily may individual Knutson v. Re been to establish a view, Inc., (N.D.Cal. F.Supp. 383 common-law conspiracy pur- 1359 for modified, 1974), (9th 1977); 548 pose. F.2d 795 Cir. Co. Windsor Theatre v. Walbrook Amuse Motion rehearing overruled. Co., (D.Md.1950), F.Supp.
ment affm’d, (4th 1951). 189 F.2d Cir. AKIN, J., dissents.
Likewise, quarrel he have no with those holding particular
decisions on their facts the claim common-law ground provide independent
did not liability against
primary corporation any par-
its chief officer absence
ticipation wrongdoing another