Cartwright v. Canode

• Decision Date: 16 December 1914
• Docket Number: (No. 2326.)
• Citation: 171 S.W. 696
• Parties: CARTWRIGHT et al. v. CANODE.
• Court: Texas Supreme Court

Page 696

171 S.W. 696

CARTWRIGHT et al. v. CANODE.

(No. 2326.)

Supreme Court of Texas.

December 16, 1914.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by H. P. Canode against J. W. Cartwright and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (138 S. W. 792), and defendants bring error. Affirmed.

Madden, Trulove & Kimbrough and F. M. Ryburn, all of Amarillo, for plaintiffs in error. Reeder & Graham, of Amarillo, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for defendant in error.

BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of the case:

"Appellee, H. B. Canode, instituted this suit in the district court of Potter county against appellants, J. W. Cartwright, S. P. Vinyard, W. A. Askew, R. H. McAlpine, W. D. Twitchell, Howard Trigg, W. H. Caviness, and W. H. Lewis, to recover damages for the alleged wrongful acts of appellants in breaking into a private storeroom in appellee's hotel known as the Amarillo Hotel, on September 10, 1908, and taking therefrom wines, whiskies, beer, etc., and transporting the same through the streets of Amarillo for a distance of about three blocks, thus publishing appellee's hotel as a blind tiger and causing his guests to leave, and to otherwise injure his business. Appellee itemized his damages as follows: Value of stock of liquors seized and carried away, $1,500; loss of patronage occasioned by the disturbance at the hotel at the time of the raid, $500; injury to his business caused by the notoriety given the occurrence in carrying away the goods saved, $25,000; exemplary damages, $25,000.

"Appellants pleaded the general denial, and specially denied that there was any concerted action or agreement between them to do the acts complained of by appellee, and that, if any act was done by them as alleged, it was so done at the request and under the direction of known officers of the law, viz., E. Putnam and O. J. Rountree, special officers known as Texas Rangers, who are acting under and by virtue of a `search and seizure writ duly issued and legal upon its face.' A return of the goods seized was also alleged.

"A trial was had before a jury, and a verdict returned in appellee's favor against all of the defendants for the sum of $1,600 as actual damages, and judgment was rendered in accordance therewith.

"At the time of the occurrences under review the city of Amarillo was operating under a published local option law, and it is undisputed that the Rangers named in the special plea of appellants in due form sued out a warrant on its face authorizing a search of appellee's premises and a seizure of intoxicating liquors, as provided by section 2 of the act approved April 5, 1907. See General Laws 1907, p. 157. It is also undisputed that, with this warrant in hand, and acting by virtue thereof, said Rangers forcibly broke open a storeroom in appellee's hotel and seized one or more dray loads of wines, whisky, beer, and perhaps other intoxicating liquors found therein. Appellee did not sue either of the Rangers so acting, but specially alleged that the defendants advised and agreed to the issuance of the warrant and to the seizure made. The proof, however, affords little or no warrant for this allegation. On the contrary, we think the record only supports the conclusion that, after the forcible entrance and seizure stated, appellants, without malice and in good faith, and at the request of said Rangers, assisted in removing the intoxicating liquors mentioned into drays, and thereafter accompanied the conveyances to a place where they were temporarily deposited. It is also undisputed that the liquors were later returned without injury, and the court peremptorily instructed the jury not to find damage because of a retention of the property."

The defendants below, the plaintiffs in error here, claimed that they were not liable for damages, because they were summoned to aid Rangers under a writ which the Rangers had secured in accordance with the statutes enacted by the Legislature empowering them to do so. The plaintiffs in error defended upon the ground that they were summoned by officers who held the process before stated, and that they acted in obedience to that summons. Before the trial of the case, the statute under which process was issued had been declared unconstitutional, and the trial court held that the plaintiffs in error were liable for damages occasioned by the acts of the Rangers and themselves under said writ of seizure. The Court of Civil Appeals of the Second District affirmed the judgment, holding that, the statute having been declared void, the plaintiffs in error could not protect themselves by reason of authority given in it to sue out the writ, and because they had acted upon authority and summons of officers authorized to do so.

The trial court charged the jury as follows:

"(4) If you find and believe from the testimony that the defendants, or any one or more of them, did the acts of trespass complained of in plaintiff's petition, and you further find that he, or they, did not do it voluntarily, but did it at the command or request of the said O. J. Rountree, or either of his fellow Rangers, Putnam and Jones, with no malicious intent on his or their part to humiliate, harass, or injure the plaintiff, but did so under the honest belief at the time that the said Rangers were acting under proper and legal warrant of authority to do the acts that were done, you will find a verdict in favor of such defendant or defendants as you may believe from the evidence so acted, and in favor of the plaintiff against the defendant or defendants as the testimony may show acted otherwise in regard to...