Butler v. Morgan

• Decision Date: 20 September 1979
• Docket Number: No. 17452,17452
• Citation: 590 S.W.2d 543
• Parties: D. B. BUTLER, M.D., Appellant, v. Mary MORGAN and John Holloway, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 543

590 S.W.2d 543

D. B. BUTLER, M.D., Appellant, v. Mary MORGAN and John Holloway, Appellees.

No. 17452.

Court of Civil Appeals of Texas, Houston (1st Dist.)

Sept. 20, 1979.

Rehearing Denied Oct. 25, 1979.

Thomas R. Beech, Houston, for appellant.

Max H. Jennings, Houston, for appellee.

Before COLEMAN, C. J., and WALLACE and DOYLE, JJ.

COLEMAN, Chief Justice.

This is a suit for the damage resulting from the alleged malicious prosecution of a civil suit. The case was dismissed on motion of the defendants and this appeal resulted. Affirmed.

Mary Morgan filed a medical malpractice suit against Doctor Donald B. Butler, and others, which proceeded to trial and resulted in a judgment in favor of all of the defendants. Thereafter, Doctor Butler filed this suit for damages asserting a cause of action based on malicious prosecution. When this case came on for trial, prior to the selection of the jury, a hearing was held on a pleading entitled "plea to jurisdiction, plea in abatement, plea of limitations, special exception, and revival of summary judgment pleading." At the conclusion of this hearing the trial court entered an order which recited that the court " is of the opinion that the cause of action of malicious prosecution requires actual interference with the defendant's person (such as an arrest or detention) or property (such as an attachment, an appointment of a receiver, a writ of replevin, or an injunction) and that the plaintiffs' first amended petition failed to allege such interference." The court then ordered that "such pleas" be sustained and that the suit be dismissed.

The appellant relies on a single point of error asserting that the trial court erred in dismissing Doctor Butler's suit on the ground that it failed to allege actual interference with the person or property of Dr. Butler. Appellant has not argued that the case should be remanded for the purpose of permitting the petition to be amended to assert additional elements of damage which would constitute such interference. The judgment entered was approved by the attorney for Dr. Butler.

It is well established that one of the essential elements which must be pleaded and proved for recovery based on malicious prosecution is that the plaintiff has suffered damages conforming to legal standards under Texas law. Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App.-Austin 1962, writ ref. n. r. e.).

The plaintiff alleged that he suffered injury to his personal and professional reputation as a surgeon and physician, personal humiliation, mental anguish and distress. He asserted that he had been damaged in his practice of medicine, which depends largely upon referrals from other physicians, and that he was forced to neglect his professional practice to his damage. He asserted that his professional malpractice insurance had been cancelled as a result of this malpractice suit and that his insurance premiums had been increased, caused at least in part by the filing of this suit.

The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits, with malice and without probable cause, unless the party sued suffers some interference, by reason of the suit, with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (Tex. 1920)....