Cobb v. Garlington

• Citation: 193 S.W. 463
• Decision Date: 03 February 1917
• Docket Number: (No. 8519.)
• Parties: COBB v. GARLINGTON.
• Court: Court of Appeals of Texas

193 S.W. 463

COBB v. GARLINGTON.

(No. 8519.)

Court of Civil Appeals of Texas. Ft. Worth.

February 3, 1917.

Appeal from District Court, Montague County; C. F. Spencer, Judge.

Suit by John Garlington against H. H. Cobb. Judgment for plaintiff, and defendant appeals. Reformed and affirmed.

John J. Hiner, of Ft. Worth, for appellant. J. W. Chancellor, of Bowie, for appellee.

BUCK, J.

This suit was brought February 8, 1915, by appellee against appellant to recover both actual and exemplary damages, and was based upon the writing by appellant to the City National Bank of Bowie, Tex., of the following letter:

"H. H. Cobb, Pres., E. A. Slack, V. Pres., A. B. Richardson, V. Pres., D. E. Cobb, V. Pres., C. S. Cobb, Treas., W. H. Cobb, Secy., H. B. Church, Asst. Secy. The W. C. Belcher Land Mortgage Co. Ft. Worth, Texas, Jan. 29, 1915. City National Bank, Bowie, Texas— Gentlemen: Yours of the 28th at hand. The draft referred to was obtained by fraud. D. E. Cobb was (at the time of this draft) just recovering from a very serious attack of insanity, and was not fit to do business. Jackson & Garlington knew of this and took advantage of his extremely nervous condition. Jackson & Garlington have not accounted to me for rent of my 586 acres on which Jackson lived last year. Unless they cancel and return this draft I expect to prosecute them. Yours truly, H. H. Cobb."

The above letter was in answer to the hereinafter set out letter written by the bank, to wit:

"Bowie, Texas, Jan. 28th, 15. The W. C. Belcher Land Mortgage Co., Ft. Worth, Texas — Gentlemen: Several days ago Mr. John Garlington deposited with us a draft on you for $55.00 drawn by D. E. Cobb, V. Pt., and payable to John Garlington and Sam Jackson. Payment on this draft was refused and was protested and returned. The protest fees were $5.10. You will please advise us why payment on this draft was refused, as Mr. Garlington says that he has a letter from Mr. Cobb, who signs as V. Pt., to turn this in to the Bank and get the funds on it. Yours very truly, C. C. Hutchinson, Asst. Cashier."

It appears from the statement of facts that H. H. Cobb, who was president of the W. C. Belcher Land Mortgage Company, had an adopted son, D. E. Cobb, who had become demented, and had been sent by H. H. Cobb to the latter's ranch in Jack county for the purpose of restoring his health and normal mental condition. One Sam Jackson was a tenant on, and in charge of, appellant's ranch, and during December, 1914, sold to D. E. Cobb for $55 certain cotton in the field and unpicked. In payment of said cotton the following draft was drawn: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It appears that Jackson owed Garlington, and in part payment of such indebtedness delivered to Garlington, who was a merchant doing business at Bowie, said draft. Garlington deposited the draft in the City National Bank at Bowie, and it was sent to Ft. Worth, where appellant lived, for collection. When the draft was presented to appellant it did not have the indorsement of John Garlington upon it, and the draft was returned to the City National Bank of Bowie for such indorsement. After the indorsement was made, it was again returned for payment, and the payment thereof refused, and the item protested. As presented in evidence, the draft had across the face a notation of protest on January 20, 1915, and on the back of same the indorsements "Sam Jackson" and "John E. Garlington."

The case was tried before the court, and judgment rendered for plaintiff for $100 actual damages and $100 exemplary damages, from which judgment defendant appeals.

Appellee claimed that his credit was injured at said bank, and generally, on account of said letter written by appellant, and also claimed damages for injuries to his feelings, as well as exemplary damages on account of the facts: That the statements in said letter were untrue, and were willfully and maliciously made by appellant for the express purpose of injuring appellee.

Appellant pleaded that the letter written by him was in answer to the letter written to him by said bank calling for certain information; that the same was written in confidence to said bank, in good faith, with the honest belief that the statements therein contained were true, and without any malice on his part towards appellee, and without any intention on his part to injure him. He further pleaded that said letter was written by him under the belief that he owed the duty to said bank to furnish it the information called for in its letter to him, and that he thought and believed that said letter was a confidential communication to said bank and was written by him as such; that, if appellee was not the party who had perpetrated the fraud on his son in connection with Sam Jackson, then the letter written by him to said bank had no reference to him; that if said letter was shown to appellee, or to any one else, by said bank, it was so shown without appellant's knowledge or consent; and that, if any injury occurred to appellee by reason of the circulation of said letter by said bank, then such injuries, if any, were occasioned by the act of the bank, and not by the act of appellant.

Appellant testified that his adopted son, D. E. Cobb, had not been in good mental condition for some years; that he had been confined in asylums at Traverse City, Mich., at Paris Sound, Ontario, and at Flynt, Mich.; that this unsettled condition of mind had existed for some ten years, but not so seriously until about three years prior to the trial; that during the past four years the appellant and the Belcher Land Mortgage Company had not intrusted any business matters to said D. E. Cobb, though his name appeared still on some of the letter heads and other stationery of the company as vice president of said company; that on receipt of the draft he noted the absence of Garlington's indorsement and had the draft returned to the bank to procure the same. In the interim appellant took a trip to his ranch and learned what he thought were the facts in the case, to wit, that Sam Jackson and another, whom he understood to be Garlington, had induced appellant's demented son to give them the draft in question in payment of a little remnant of cotton then in the field, which was subsequently sold for $9; that Jackson had tried to sell appellant the crop before it was picked, and that he had refused to buy it that he concluded that Jackson and the other man, whom he thought and understood to be Garlington, had attempted to take advantage of the known mentally weak condition of his son; that he did not know Garlington personally, and had no ill feeling or malice towards him, and that at the time he made the statements contained in the letter he believed them to be strictly true, with reference to the parties who had sold this cotton to his son; that upon his learning that Garlington was not the other man present when the cotton was sold to his son, he wrote the following letter to Garlington:

"The W. C. Belcher Land Mortgage Co., Ft. Worth, Texas, Feb. 12, 1915. John Garlington, Bowie, Texas — Dear Sir: I am just back from a trip to Jack county. I learned that you had no interest in the crop made by Mr. Sam Jackson except probably a mortgage interest. I had been misinformed and supposed you and Jackson were partners. In writing the bank at Bowie I should not have connected your name with Mr. Jackson's as I did. The check which my son gave being drawn to you and Jackson, I supposed at that time that you and he were partners. As my son was known to be an invalid, just recovering from a most serious spell of insanity, I was naturally very indignant that neighbors should take such an advantage of his condition. Am very sorry to have been unjust to you. If you show this letter to your bankers it will I hope set matters as nearly right as possible. Yours truly, H. H. Cobb."

As will be noted, the letter is dated February 12, 1915, four days after suit was filed, though appellant stated that he did not know whether the letter to Garlington was written after or before the service of citation in the case. He further stated under cross-examination:

"I do not commonly write such letters with reference to men as I wrote to the bank on this occasion; I might act a little more hasty right at the time than I would at a later date. Yes; I was a little bit vexed right at that time."

Appellee testified that he did not know D. E. Cobb nor H. H. Cobb; that he had a mortgage on the crop of Sam Jackson, and that the draft was sent him in part payment of the indebtedness due him; that he knew nothing of any trade between D. E. Cobb and Sam Jackson in settlement of which the draft was given; that he knew nothing of the mental condition of D. E. Cobb; and that, when the payment on the draft was refused, he wrote to D. E. Cobb for an explanation. There appears in the statement of facts the following letter, which evidently accompanied, or was written about the time of the sending of, the draft to Garlington:

                                           "Jany. 13, 1915
                

"Mr. John Garlington, Bowie, Texas—Dear Sir: I inclose draft in favor of you and Sam Jackson for $55 for cotton. Please indorse same and deposit in your bank.

                    "Yours truly,               D. E. Cobb."
                

Appellee further testified that he did not claim any injury in this case, as a basis for damages, except the injury to his feelings; that it hurt his feelings considerably.

Appellant urges in his first assignment that the undisputed testimony in this cause shows that the letter made the basis of this suit was written by him to the bank in reply to a letter to him seeking certain information, and that said letter was and is a privileged communication, and was so considered by the defendant, and was written by him under the belief that he owed it to said bank to state the facts to it as he understood them, and that he acted in good faith, with the honest belief of the...