Bros v. Kempner

• Decision Date: 13 February 1885
• Docket Number: Case No. 1888.
• Citation: 63 Tex. 298
• Court: Texas Supreme Court
• Parties: BEAR BROS. & HIRSCH v. MARX & KEMPNER.

63 Tex. 298

BEAR BROS. & HIRSCH

v.MARX & KEMPNER.

Case No. 1888.

Supreme Court of Texas.

Feb. 13, 1885.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

The opinion states enough of the case for a proper understanding of the principles announced.McLemore & Campbell and G. E. Mann, for appellant, that the court erred in its charge regarding the effect of “probable cause,” cited: Harris v. Finberg, 46 Tex., 96, 97;Culbertson v. Cabeen, 29 Tex., 255;Kirsey v. Jones, 7 Ala., 626;Peiser v. Cushman, 13 Tex., 391;Wilson v. Outlaw, 1 Minor (Ala.), 368.

That the court erred in applying the bar of limitation of one year, they cited: American Leading Cases; R. S., art. 3202, p. 464; R. S., Penal Code, p. 38, art. 273; Introduction to Revised Statutes; R. S., art. 3138, subd. 6, p. 455; Pasch. Dig. of Laws, art. 4604; Hart. Dig., p. 726; Usher v. Skidmore, 28 Tex., 616.

Davis & Sayles, for appellees, that the court did not err in sustaining exceptions to the claim for vindictive damages, cited: Wallace v. Finberg, 46 Tex., 36;Harrison v. Harwood, 31 Tex., 657; Kauffman & Runge v. Wicks, Tex. L. Rev., vol. 4, No. 19, p. 272.

That the action was in effect an action for malicious prosecution, they cited: Jacobs, Bernheim & Co. v. Crum, 4 Tex. L. Rev. (Dec. 9, 1884), page 320; Same Case, 3 Tex. L. Rev., 423; Drake on Attachments, secs. 154, 729; 1 Wait's Act. and Def., 428, citing Lovier v. Gilpin, 6 Dana, 321;Smith v. Story, 4 Humph., 169; Joy v. Barnhart, 10 Mo., 151; McKellar v. Couch, 34 Ala., 336; Tallant v. Burlington Gas Light Co., 37 Iowa, 261; Wood v. Weir, 5 B. Mon., 544, 549;Bump v. Betts, 19 Wend., 421;O'Brien v. Barry, 106 Mass., 300; Whitworth v. Hall, 2 Barn. & Ad., 680; Matthews v. Dickinson, 7 Taunt., 399.

In their motion for rehearing, they cited: Hubbard v. Lord, 59 Tex., 383; Haldeman v. Chambers, 19 Tex., 52-55;Wallace v. Finberg, 46 Tex., 49;Harris v. Finberg, 46 Tex., 79;2 Greenl., §§ 453-59;Stewart v. Sonneborn, 8 Otto, 187, and authorities therein cited; Drake on Attachments, secs. 154, 729; 1 Wait's Act. and Def., 428, citing Lovier v. Gilpin, 8 Dana, 321; Smith v. Story, 4 Humph., 169; Joy v. Barnhart, 10 Mo., 151; McKellar v. Couch, 34 Ala., 335; Tallant v. Burlington Gas Light Co., 37 Iowa, 261; Wood v. Weir, 5 B. Mon., 544-9;Bump v. Betts, 19 Wend., 421;O'Brien v. Barry, 106 Mass., 300; Whitworth v. Hall, 2 Barn. & Ad., 680; Matthews v. Dickinson, 7 Taunt., 399.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the appellants October 24, 1882, to recover damages, actual and exemplary, from the appellees, under averments that on October 26, 1880, they wrongfully, vexatiously, maliciously, and without probable cause, sued out two writs of attachment, which on the 27th October,1880, were levied on a stock of goods belonging to the appellants.

They also sought to recover damages for the alleged neglect of appellees to collect certain collaterals, which had been placed in their hands for collection, and as security for debts due to them by the appellants.

By demurrer, the defendants interposed the defense of limitation of one year, which on hearing was sustained, to so much of the petition as sought to recover exemplary damages.

This ruling is assigned as error.

Art. 3202, R. S., provides that: “There shall be commenced and prosecuted within one year after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description:

1. Actions for injuries done to the person of another.

2. Actions for malicious prosecution, or for injuries done to the character or reputation of another by libel or slander.

3. Actions for damages for seduction or breach of promise of marriage.

4. Actions for injuries done to the person of another, where death ensues from such injuries; and the cause of action shall be considered as having accrued at the death of the party injured.”

It is claimed by the appellees that, within the meaning of this statute, this is an action for malicious prosecution.

Every action referred to in the article cited evidently is an action for injury done to the person or character, unless it be an action for malicious prosecution, which is ordinarily brought for an injury resulting from a wrongful and malicious prosecution of a criminal action, but may be brought in a few cases in which civil actions have been maliciously prosecuted.

The cases in which the latter class of actions may be brought are not very clearly defined.

The fact that the statute, in grouping the various actions which must be brought within one year after cause of action accrues, includes an action for malicious prosecution with those given only for injuries done to person or reputation, is strongly indicative that it was the intention of the legislature to make the statutory bar of one year applicable only to actions brought for malicious prosecutions under the criminal law of the state, which in terms defines that offense. P. C., 273.

Such a prosecution involves the arrest of the person prosecuted, and is an injury to the person, and may be an injury to reputation.

Thus considered, the action for malicious prosecution, embraced in the article under consideration, would be kindred in character to the other actions to which the bar of one year is applied.

In construing a statute, it is often proper, and even necessary, that the meaning of words may be ascertained by reference to the meaning of words associated with them. This rule is thus stated by an elementary writer: “In the construction of statutes, likewise, the rule ‘ noscitur a sociis' is very frequently applied; the meaning of a word, and consequently the intention of the legislature, being ascertained by reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter.” Broom's Legal Maxims, 593; State v. McGarry, 21 Wis., 496.

It seems more in harmony with the letter and spirit of the entire article under consideration to hold that it refers only to actions for malicious prosecution under the criminal laws of the state wherein injury to the person results, than to apply it to an action for the malicious prosecution of a civil action, wherein, under the laws of this state, the estate of a defendant alone would be affected.

This construction of the article is strengthened by the provisions of the succeeding one, which provides that “there shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

1. Actions of trespass for injury done to the estate or the property of another.

2. Actions for detaining the personal property of another, and for converting such property to one's own use.

3. Actions for taking or carrying away the goods and chattels of another.

4. Actions for debt where the indebtedness is not evidenced by a contract in writing.

5. Actions upon stated or open accounts, other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents.” R. S., 3203.

These actions all relate to injuries done to the property or estate of the party bringing the action.

The first subdivision of this article would doubtless include a seizure under an attachment wrongfully or maliciously sued out; for it is evident that the “actions of trespass” here spoken of do not mean such actions as are technically so known; for, in this state, there are no such distinctions in, or forms of, actions as are known at common law.

The word “trespass,” as here used, is used, not in a technical sense, but broadly, and means any act violative of the right of another through which...