Patterson & Wallace v. Frazer

• Decision Date: 23 March 1904
• Parties: PATTERSON & WALLACE v. FRAZER.
• Court: Texas Court of Appeals

Page 1077

79 S.W. 1077

PATTERSON & WALLACE v. FRAZER.

Court of Civil Appeals of Texas.

March 23, 1904.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Ella Frazer against Patterson & Wallace. Judgment for plaintiff, and defendants appeal. Reversed.

This suit was brought by Ella Frazer against Patterson & Wallace, a firm of lawyers composed of C. B. Patterson and G. E. Wallace, to recover damages for alleged negligence in the conduct and prosecution of a suit in her behalf, under their contract of employment, against John Moore and his wife, for $10,000 damages, for uttering slanderous words of and concerning plaintiff. The substance of the allegations in plaintiff's petition is. That on the 1st day of February, 1901, she employed defendants (paying them a cash fee of $250) as attorneys at law to institute and prosecute a suit, through all the courts it might be carried, against John Moore and his wife, Ellen, for slander. That her suit against Moore and wife was based upon the following spoken language publicly uttered against plaintiff, who was single and had never been married, by Mrs. Moore, who, during the month of May, 1900, willfully and maliciously, with the intent to injure plaintiff, knowing that such statements were untrue, spoke in the presence and hearing of Mrs. Shertz the following words: "The Frazer girls need not be talking about Marie Howard, for, at any time they want to, it can be proven that the child born in San Antonio is not Mrs. Durrell's child, but Ella Frazer is its mother, and its father was in the country about a year ago. This can be proved by people in Toyah." That on June 27, 1900, after the above false statement had been made, Mrs. Moore, when asked by plaintiff about said statement in the presence of Emma Frazer, plaintiff's sister, Marie Long (née Howard), Mrs. Long, Louis Shertz, and a number of Mexicans, at the house of Mrs. Louis Shertz, in Reeves county, Tex., maliciously and with intent to injure plaintiff, knowing that the utterances were false, spoke to and of plaintiff as follows: "Not only one, but some three. You think nobody knows anything about it. Wait until court meets, and I will show you who you are. You offered to buy this one [referring to a sick child in the house where the statement was made]. If you want one, go to Alpine and get yours. I don't see how you can hold up your head and go among people like you do. The world knows who you are. I don't see how you can think of facing your God with as dirty a heart and soul as you have. You have no conscience. The next time I have to do away with one [meaning a child] I will send for you, as you are perfect in the business." That by reason of the foregoing false and malicious statements, and mental and physical suffering thereby occasioned plaintiff, she sustained the sum of $5,000 actual and $5,000 exemplary damages, all of which she could reasonably have expected to recover in her suit therefor against John Moore and wife, had her suit been properly conducted and prosecuted. That in pursuance of their employment the defendants, Patterson & Wallace, filed suit in the district court of Reeves county, Tex., where Moore and wife resided, and the slanderous language was spoken, for the plaintiff, against John Moore and wife, to recover of and from them $10,000 damages by reason of the utterance and publication by Mrs. Moore of and concerning plaintiff the slanderous language above stated. That after such suit was instituted, and defendants therein cited, and had filed their answer, the clerk of the court filed a motion in the case asking the court to require the plaintiff to enter into a bond for the costs that had accrued and might accrue in said suit. That such motion was granted, and a rule for costs entered on the minutes against the plaintiff on the 5th day of March, 1901, and the cause continued until the September term of the court. That, after the rule for costs had been granted, defendants herein, Patterson & Wallace, promised plaintiff that they would make satisfactory arrangements with the clerk of the court in regard to securing the costs, and told her that she need not bother herself about that matter, for one of the firm would be in attendance upon the court on the first day of its September term, and attend to the matter. That, being ignorant of the rules of judicial procedure in such matters, and relying upon the promise of defendants, made as her attorneys in the case, she never made nor tendered to the clerk on the first day of September term of the court a bond for costs, as was required by the order made by the court at its prior term, and, neither member of the firm of Patterson & Wallace being present or in attendance on the court on the first day of its September term, the fact that no bond or security for costs in the case had been given by plaintiff was called to the court's attention by its clerk, whereupon the court then entered an order dismissing the cause from its docket. That defendants, Patterson & Wallace, were guilty of negligence, after promising her that they would see that security for costs was given at the proper time, and that one of them would be in attendance on the court at its September term, in not seeing that the proper bond or security for costs was given in time to prevent a dismissal of the cause, and in not being present and in attendance on court at the first day of its September term, and then taken such steps as were necessary to prevent the cause from being dismissed. That afterwards, during the September term, 1901, of said court, the defendants filed a motion to set aside the order of dismissal and reinstate the cause upon the docket, but that, in drawing up such motion and its amendment, they negligently failed to incorporate therein such grounds therefor, which, when addressed to the sound judicial discretion of the court, would have authorized the court in granting it, and that by reason of such negligence said motion was overruled, and the order of dismissal thereby became the final judgment of the court, and her cause of action against Moore and wife lost, because then barred by the statute of limitations. That, by reason of defendants' negligence and mismanagement of said suit, plaintiff has been damaged in the sum of $10,000, which she was entitled to, and might reasonably have expected to, recover in her suit against John Moore and wife, had the same been properly conducted, and in the further sum of $363.55 actually paid for attorney's fees, expenses, and costs necessarily incurred in connection with said suit, besides $37.50 time lost by reason of said litigation, for all which she prayed judgment against the defendants. The defendants answered by a general demurrer, and by special exceptions to plaintiff's petition on the ground that the damages she alleges she could have reasonably expected to recover against John Moore and wife, had it not been for the alleged negligence of defendants, are too remote to constitute a cause of action. The case was tried before a jury, and the trial resulted in a verdict in favor of plaintiff for $500.

The facts that plaintiff employed defendants as attorneys at law, paying them a cash fee of $250, to institute and prosecute the suit against John Moore and wife for slander; that said suit was instituted, and afterwards dismissed on account of plaintiff's failure to give a bond for costs required by an order of court; that defendants afterwards made an ineffectual motion to reinstate the cause; and that plaintiff's alleged cause of action was barred by the statute of limitations when dismissed — are established by the uncontroverted evidence. And it may be conceded, pro hac vice, that the verdict establishes that the dismissal of the cause was the consequence of defendant's negligence, as alleged (though upon this point we have very grave doubts as to the sufficiency of the evidence to show such negligence on their part), and that after such dismissal they were negligent in preparing and filing a motion to reinstate which was void of any allegations which would authorize the court, in the exercise of its sound discretion, to set aside such order of dismissal. There was no competent evidence of the defamatory language charged in the petition to have been uttered by Mrs. Moore in the presence of Mrs. Shertz during the month of May, 1900. The plaintiff's own testimony in regard to the slanderous language charged to have been spoken by Mrs. Moore on the 27th of June, 1900, is as follows: "When I was told by Mrs. Shertz of the language used by Mrs. Moore — that `the Frazer girls need not be talking,'" etc. (repeating the alleged slanderous language charged in the petition to have been uttered by Mrs. Moore in the presence of Mrs. Shertz in May, "I went to see Mrs. Moore at a Mexican's house on Louis Shertz's place, and asked her about the language Mrs. Shertz told me of, and Mrs. Moore denied having used such language. Then I got Mrs. Shertz to go with me to where Mrs. Moore and others were. Mrs. Moore first denied saying it, and then Mrs. Shertz told her she did, and Mrs. Shertz repeated the remark already quoted, and then Mrs. Moore made this other statement, `Not only one, but some three' (meaning that I was the mother of three children). `You think nobody knows anything about it. Wait until court meets, and I will show who you are,'" etc. (repeating all the language charged in the petition to have been uttered by Mrs. Moore on June 27, 1900). "There were about a dozen more persons present, besides Mrs. Shertz and Marie Long, when these statements were made, being Mexicans; and my sister Emma Frazer was also present."

The eleventh paragraph of the court's charge to the jury is as follows:

"You are instructed that the language uttered by Mrs. Ellen Moore concerning the plaintiff, Ella Frazer, on the 27th of June. 1900, in the presence of Mrs. Louis Shertz, Marie Long, and some...