Andrews v. Dewberry

• Decision Date: 14 September 1951
• Docket Number: No. 15271,15271
• Citation: 242 S.W.2d 685
• Parties: ANDREWS v. DEWBERRY.
• Court: Texas Court of Appeals

Page 685

242 S.W.2d 685

ANDREWS v. DEWBERRY.

No. 15271.

Court of Civil Appeals of Texas, Fort Worth.

Sept. 14, 1951.

Rehearing Denied Oct. 12, 1951.

W. F. Bane and Lee S. Bane, both of Dallas, for appellant.

R. G. Smith and Leonard R. Winborn, both of Dallas, for appellee.

RENFRO, Justice.

This suit was instituted by Woodrow Dewberry, appellee, against Millard F. Andrews, appellant, for damages for alleged malicious prosecution. Appellant swore out a criminal complaint in Dallas County on March 6, 1950, charging appellee with theft of fourteen head of cattle. Warrant was issued for the arrest of appellee and he made bond. The grand jury reported a 'no bill' on March 17, 1950.

Dewberry filed this suit against Andrews on April 5, 1950, and recovered a verdict for $6,000. The jury found that appellant Andrews, (1) did not have probable cause to file the complaint against Dewberry, (2) Andrews did not make a full and fair statement of facts known to him to the Assistant District Attorney before filing the complaint, (7) Andrews acted with malice in filing the complaint.

The appellant's first five points allege error on the part of the trial court in submitting the issues to the jury on 'preponderance of the evidence' instead of submitting the issues on evidence that was 'clear, satisfactory and convincing.'

In certain types of cases, including damages for malicious prosecution, the facts must be established by clear and convincing evidence. That rule is discussed fully by the Commission of Appeals in an opinion adopted by the Supreme Court in Carl v. Settegast, Tex.Com.App., 237 S.W. 238.

The court in that case, and in the authorities cited therein, points out that the rule in practical effect is but an admonition to the court to use great caution in weighing the evidence.

The doctrine is firmly established that issues of fact are resolved from a preponderance of the evidence, and issues requiring a higher degree of proof than preponderance of the evidence may not be submitted to the jury. Points 1 through 5 overruled. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206.

Appellant's points 6 through 15 will be discussed together. In substance, appellant alleges (a) no evidence to sustain the jury's answers to issues 1, 2 and 7; (b) jury's answers to 1, 2 and 7 are against the great preponderance of the evidence; (c) jury's answers to 1 and 7 were not supported by clear, satisfactory and positive proof; (d) undisputed evidence shows that appellant made a full and fair statement of the facts known to him to the Assistant District Attorney; (e) the complaint was filed solely on the advice of the Assistant District Attorney after such disclosure.

The appellant Andrews and one R. H. Shipley met on a Thursday afternoon and had a conversation regarding the sale of some cattle owned by Andrews. It was the contention of Andrews that he had had prior dealings with Shipley; that Shipley would buy cattle subject to the approval of his landlord, Dr. Gable, who furnished the money. He contended, before the jury, that on the occasion in question, he agreed to haul fourteen head of cattle to Shipley's lot, and if Dr. Gable did not want the cattle after seeing them, they would be returned to Andrews.

Shipley testified that he told Andrews that Dr. Gable would not buy that kind of cattle but that he, Shipley, would buy the cattle; that Andrews then sold the cattle to Shipley on credit to be paid for within a reasonable time.

On Friday morning, the cattle were delivered to Shipley. On Saturday morning, appellee Dewberry hauled the cattle in his truck from Shipley's lot to the auction ring at Mesquite, Texas. All the cattle were tagged in the name of R. D. Shipley, son of R. H. Shipley, and sold to various persons at the auction ring. Appellee Dewberry did not buy any of the cattle direct from the Shipleys, but did buy two head of the cattle from one of the purchasers at the ring, and sent them to Fort Worth for sale on Sunday. A few days later he bought a third head of the cattle from one of the purchasers at the auction and appellant Andrews saw that one in Dewberry's lot.

At the time of the transactions involved, Dewberry was pressing Shipley for payment of an indebtedness of $950. By prearrangement, the cashier at the auction ring paid Dewberry $900 of the purchase price of the Andrews cattle, and paid R. H. Shipley the balance of the money. Andrews received nothing for the cattle. Andrews learned of the sale on the Monday following the sale on Saturday, and immediately asked Shipley for payment, although he did not inform Shipley that he knew the cattle had been sold at the auction ring. After various attempts to collect from Shipley and Dewberry, Andrews filed charges of theft against both men and as heretofore stated, appellee Dewberry was no-billed and brought this suit for damages.

Generally, actions for malicious prosecution are not favored by the law. To be entitled to damages plaintiff must prove by clear, convincing and positive testimony that the criminal charges against him were without probable cause and were actuated by malice.

The jury's answers to the questions on probable cause, malice and disclosure to the Assistant District Attorney are supported by the following testimony: The witness Shipley as hereinabove mentioned, testified that he bought the fourteen head of cattle from appellant Andrews to be paid for in a reasonable time. He did not buy them subject to the approval of his landlord, Dr. Gable, as testified to by appellant. He, Shipley, owed appellee Dewberry $950. He told Dewberry he had no money, but had some cattle he would sell and pay him from the proceeds. Dewberry hauled the cattle for him to the auction ring. The cattle were sold and Dewberry received $900 from the sale.

Dewberry denied knowing the cattle belonged to Andrews. He testified that Shipley told him his boy raised them; that no one warned him that anything was wrong with the cattle.

Four witnesses testified that appellant Andrews told them soon after the sale at the auction ring that he had sold the cattle to Shipley.

If Shipley bought the cattle from Andrews, then appellee Dewberry could not be guilty of stealing the cattle from Andrews and Andrews could have no probable cause for charging Dewberry with theft. The evidence was sharply conflicting as to whether Andrews sold the cattle to Shipley or merely sold them subject to approval of Dr. Gable. No direct issue was submitted to the jury on the question of the sale, and no such issue was requested by either party. The jury's findings that the appellant Andrews did not have probable cause to file the criminal complaint against Dewberry is an implied finding that Andrews did sell the cattle to Shipley.

We believe the testimony offered by appellee is sufficient to uphold the jury's findings on issue No. 1.

In answering the issue on malice, the jury had the testimony heretofore set out, and in addition, heard testimony that Andrews had told witnesses he could not get any money out of Shipley and thought he could get the money if he filed on Dewberry. Appellee Dewberry testified that appellant Andrews told him he was going to drain him for every dollar he could and ruin him so he could not buy a head of cattle in that country.

Malice may be established by direct or circumstantial evidence. The existence of malice may be implied of inferred by the jury from want of probable cause. Ramsey v. Arrott, 64 Tex. 320. Viewing the evidence in the light most favorable to the plaintiff, as we are bound to do in view of the jury's findings, we are compelled to hold that the jury's answer to issue No. 7 on...