Armendariz v. Bill Sears Supermarket No. 1, 6655

• Decision Date: 08 February 1978
• Docket Number: No. 6655,6655
• Citation: 562 S.W.2d 529
• Court: Texas Court of Appeals
• Parties: Eloy Flores ARMENDARIZ, Appellant, v. BILL SEARS SUPERMARKET NO. 1, a corporation, Appellee.

Page 529

562 S.W.2d 529

Eloy Flores ARMENDARIZ, Appellant, v. BILL SEARS SUPERMARKET NO. 1, a corporation, Appellee.

No. 6655.

Court of Civil Appeals of Texas, El Paso.

Feb. 8, 1978.

Rehearing Denied March 8, 1978.

W. R. Barnes, Joseph V. Gibson, III, Odessa, for appellant.

Will Hadden, Odessa, for appellee.

OPINION

WARD, Justice.

The Appellant, Eloy Flores Armendariz, instituted this negligence action against the Appellee, Bill Sears Supermarket No. 1, a Corporation, because of his arrest and detention in County jail as a result of a warrant for his arrest being issued pursuant to a complaint having been filed charging him with passing a forged check. Three special exceptions were levelled against the pleadings pointing out that the Appellant's remedy was only for malicious prosecution, that necessary allegations for that cause of action of want of probable cause were missing from the pleadings, that allegations of negligence and proximate cause were impermissible substitutes for the real cause of action, and that the pleadings on their face showed that the real cause of action for malicious prosecution was barred by the one-year Statute of Limitations. Tex.Rev.Civ.Stat.Ann. art. 5524. The special exceptions were sustained, the Appellant amended but declined to meet the objections made to the pleadings, and the cause of action was dismissed. We affirm.

The action of the trial court in sustaining the special exceptions and in ordering the dismissal for the failure to state a cause of action requires that on this appeal we assume as true all factual allegations set forth in the Appellant's first amended petition. Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App. Tyler 1973, writ ref'd n.r.e.). The pleadings are to the effect that on August 18, 1973, the Appellant was working in Houston when unknown to him an unknown person passed a forged check at one of the Appellee's stores in Odessa. The check was a forgery, was payable to "Eloy Flores," and the store clerk told the police in Odessa that the Appellant had passed the check. Upon investigation, the police were told by Appellant's mother that the Appellant was working in Houston on the date of the alleged offense, and she gave the police the Appellant's photo. This was then shown to the store clerk and the clerk again insisted that Appellant gave her the check. The mother then obtained a more recent photo and showed this to the clerk and told her where the Appellant was working in Houston, and the clerk continued to insist that the Appellant was the one who gave her the forged instrument. No effort was thereafter made by the Appellee to investigate the information given to it, either before or after charges had been filed in Odessa. It was not until February 19, 1974, that the Appellant was arrested in Houston and placed in the County jail, and he remained there until February 28, 1974. It was only upon his promise that he would travel to Odessa at his own expense and take a lie detector test that he was able to secure his release from the Houston jail. On March 5th, he submitted himself to the Odessa police for testing on the polygraph machine and, as a result of the test, the police caused the criminal charges pending against the Appellant to be dismissed. The Appellant further alleged substantial damages; that the acts and his damages were caused by the negligence of the Appellee in causing the criminal charges to be filed, in identifying the Appellant as the person passing the forged instrument, in failing to investigate the Appellant's whereabouts on August 18, 1973, before...