Compton v. Elliott

• Decision Date: 23 September 1932
• Docket Number: No. 993.,993.
• Parties: COMPTON v. ELLIOTT.
• Court: Texas Court of Appeals

Page 247

55 S.W.2d 247

COMPTON v. ELLIOTT.

No. 993.

Court of Civil Appeals of Texas. Eastland.

September 23, 1932.

Rehearing Denied December 23, 1932.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Action by Otis Compton against R. A. Elliott, who filed a plea of privilege. From a judgment sustaining the plea, plaintiff appeals.

Affirmed.

Harrell & Allison, of Breckenridge, for appellant.

Homer T. Bouldin, of Albany, for appellee.

LESLIE, J.

This appeal is from a judgment of the trial court sustaining the defendant's plea of privilege to be sued in Shackelford county, where he resided. The suit was one for damages based on alleged malicious prosecution of the plaintiff, Compton, by the defendant, Elliott, resulting from the indictment, trial, etc., of the appellant, Otis Compton, in the district court of Stephens county for the alleged theft of a cow owned by the appellee, Elliott, the prosecuting witness. The plaintiff's petition contained the usual allegations in such cases, the substance of the same being that the indictment was brought about by Elliott, who acted without probable cause and was actuated by malice in initiating the prosecution. That in putting the facts before the district attorney and the grand jury he did not make a full and complete statement of all the facts known to him at the time, but withheld certain facts which would have explained the conduct of the appellant, Compton, and his father in going upon the premises of appellee, Elliott, and driving a cow therefrom (testified by the Comptons to be their own). It was contended that, if such undisclosed facts known to Elliott had been revealed to the district attorney and the grand jury, there would have been no ground for the charge, and consequently no indictment.

The allegations of the controverting affidavit set forth the facts necessary to bring the suit within exception 9 to the General Venue Statute, and therefore give plaintiff the right to trial in Stephens county. The plea of privilege was set for hearing and the testimony of the respective parties heard.

The judgment is alleged to be erroneous under three propositions of law, which are, in substance, to the effect that, the plaintiff (appellant) having alleged in his petition and controverting affidavit a case of malicious prosecution on the part of the defendant (appellee) and having sustained such allegations with evidence sufficient to make a prima facie showing, it was error for the court to sustain the plea of privilege.

That a suit for damages arising out of malicious prosecution may be maintained in the county where such charge is initiated is well decided, and calls for no discussion here. See article 1995, R. C. S. 1925, subd. 9; Hubbard v. Lord, 59 Tex. 384; Leach et al. v. Stone (Tex. Civ. App.) 264 S. W. 620; Warwick v. First State Bank of Temple (Tex. Civ. App.) 296 S. W. 348. Also said subdivision 9 provides that: "A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile."

Taking this statute at what it plainly says, we are of the opinion that, upon the trial of this plea, the burden was upon the plaintiff to introduce sufficient testimony to show that, as against him, the defendant, Elliott, committed the offense of malicious prosecution in Stephens county. The appellant's counsel appears to so interpret the law, and this record discloses the appellant (plaintiff below) undertook to discharge that burden of alleging and proving all of the elements essential to the making out of the case of malicious prosecution, as alleged in his petition. That such burden or duty rested upon the plaintiff is shown by the following authorities: Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Benson v. Jones, 117 Tex. 68, 296 S. W. 865; Neyland v. Benson (Tex. Civ. App.) 292 S. W. 251; Harris v. Gregory (Tex. Civ. App.) 23 S.W.(2d) 748; Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515, 516; Horton v. Lone Star Gas Co. (Tex. Civ. App.) 19 S.W.(2d) 617; Brooks v. Herren (Tex. Civ. App.) 20 S.W.(2d) 807; Russell Grader Mfg. Co., Inc., v. McMillin (Tex. Civ. App.) 271 S. W. 124.

Here, as below, the defendant (appellee) contends that the evidence adduced on the hearing of the plea of privilege failed to show the elements of the crime of malicious prosecution he is alleged in the petition to have committed in Stephens county. If it failed to show any of the elements of the crime charged, the court correctly sustained the plea. The issue of whether or not such crime was committed, as alleged, was raised both by the pleadings and the testimony. The evidence was pro and con upon the issue, and the trial court resolved the same in favor of the defendant, Elliott, and sustained his plea. The judgment, properly construed, is a finding that the plaintiff failed to discharge the burden of proof resting upon him under the rules of law. The evidence may reasonably be interpreted to sustain such judgment, and, had a different conclusion been reached by the court, the same could be said of that judgment. If it could be said that the testimony preponderated in favor of holding the venue in the district court of Stephens county, nevertheless it would be the duty of this court to uphold the judgment of the trial court on the testimony presented.

As said in Ulrich v. Krueger (Tex. Civ. App.) 272 S. W. 824, 825; "We do not think on appeal from an order overruling a plea of privilege this court should reverse the judgment and order other disposition of the cause merely because the evidence may preponderate against it, but should affirm the trial court's action where there is enough evidence to raise an issue of fact over whether or not the alleged ground of the venue existed; especially would this course commend itself to us as being the appropriate one where, as here, both the venue as laid and the liability of the defendants sued depend upon proof of the same fact. * * * So viewing the matter, it is only necessary to determine whether or not such question of fact was raised here."

There the venue as laid and the liability of the defendants depended upon proof of fraud. In the instant case they depend upon proof of malicious prosecution.

In Sibley v. Sheerin (Tex. Civ. App.) 287 S. W. 58, where venue was sought to be established on the theory of a fraud committed, it was held that a reviewing court will not disturb a trial court's finding on a plea of privilege where it cannot say there was no evidence to support the judgment. The rule here employed in sustaining the judgment of the trial court where the testimony conflicts has had application in many cases involving trials on pleas of privilege. Baldwin et ux. v. Baldwin et al. (Tex. Civ. App.) 233 S. W. 130; Kelly v. Britton (Tex. Civ. App.) 240 S. W. 1114; Miller v. Flynn (Tex. Civ. App.) 279 S. W. 879; Accidental Oil Mills v. Shoemake (Tex. Civ. App.) 254 S. W. 385 (6); Texas Portland Cement Co. v. Carsey (Tex. Civ. App.) 3 S.W.(2d) 930; Henderson v. Lambert (Tex. Civ. App.) 293 S. W. 671; Grainger v. Gottlieb (Tex. Civ. App.) 234 S. W. 604.

The rule that prevents an appellate court from disturbing an order refusing a change of venue when testimony on the facts of venue is conflicting has equal application in cases where the trial court's order sustains the plea. There is as much reason for the rule in one case as in the other.

For the reasons assigned the judgment of the trial court is affirmed.

On Rehearing.

On a former day of this term of court an opinion was rendered affirming the judgment of the trial court in sustaining the defendant's plea of privilege and directing the case to be sent to Shackelford county for trial. The appellant has filed a motion for rehearing and it has challenged the serious consideration of this court. Many, if not all, of the authorities relied on by the proponent of the motion were before us in the original consideration of the case, but the points relied on for reversal of the judgment have been re-examined and the authorities again reviewed.

As noted, the venue of the suit was laid in Stephens county under that exception to the General Venue Statute (Rev. St. 1925, art. 1995, subd. 9) which reads as follows: "A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile." That is, the suit is one for damages based on an alleged malicious prosecution of plaintiff, Compton, by the defendant, Elliott, in Stephens county, Tex.

In our original opinion we briefly summarized our conclusion from the record in this language: "The issue of whether or not such crime was committed, as alleged, was raised both by the pleadings and the testimony." A reconsideration of the record confirms us in the view that this original interpretation of the pleadings and the testimony raising the venue question is correct.

Standing upon our conclusion above, and the further one in our original opinion that, "the evidence may reasonably be interpreted to sustain such judgment, and had a different conclusion been reached by the court, the same could be said of that judgment," the appellant, Compton, now contends that, as a matter of law, this court should have reversed the judgment of the trial court and directed a trial of the case on its merits in Stephens county, Tex. In other words, it is the appellant's theory that, since by his controverting affidavit and proof thereunder, he made a prima facie case based on a crime alleged to have been committed against him in Stephens county, he was therefore entitled to try the case in that forum. More specifically the appellant contends it was only necessary for him properly to raise the issue of whether or not the alleged crime of malicious prosecution had been committed in Stephens county by the defendant...