Daughtry v. Blanket State Bank

• Citation: 60 S.W.2d 272
• Decision Date: 26 April 1933
• Docket Number: No. 7847.,7847.
• Parties: DAUGHTRY v. BLANKET STATE BANK et al.
• Court: Texas Court of Appeals

Page 272

60 S.W.2d 272

DAUGHTRY v. BLANKET STATE BANK et al.

No. 7847.

Court of Civil Appeals of Texas. Austin.

April 26, 1933.

Rehearing Denied May 17, 1933.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Suit by Ellis Daughtry against the Blanket State Bank and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Callaway & Callaway and McGaugh & Darroch, all of Brownwood, for appellant.

Woodruff & Holloway, of Brownwood, for appellees.

BLAIR, Justice.

This is the second appeal of this case. On the former appeal, reported in 41 S.W.(2d) 527, we held that the trial court erred in sustaining certain special exceptions to appellant's pleadings upon the ground of misjoinder of causes of action, and reversed and remanded the cause for trial upon the merits. This appeal is from an instructed verdict at the conclusion of appellant's testimony. We have reached the conclusion that the instructed verdict was correct.

On this appeal appellant contends that his suit is only "for damages for wrongful dishonor of a check," given by him to one Beck in payment of cattle, "and for malicious prosecution, and slander and libel growing out of such act on the part of the defendant bank and its defendant officers"; and that the evidence was sufficient to require the submission of these causes of action to the jury.

With regard to the action for alleged wrongful dishonor of the check, no damages were alleged or proved as arising from the mere dishonor of the check; but the only damages alleged or attempted to be proved were those resulting from the alleged slanderous and libelous statements made in connection with the dishonor of the check, and the subsequent prosecution of appellant for giving the check in payment of Beck's cattle. We therefore pass to a consideration of the sufficiency of the evidence to establish the actions for slander, libel, and for malicious prosecution.

With regard to the cause of action for slanderous statements made in connection with the dishonor of the check given by appellant to Beck in payment for his cattle, we think the trial court correctly sustained the plea of limitation to that cause of action. The evidence showed that prior to the 17th day of November, 1928, Beck made three demands upon appellee bank for payment on the check; that the slanderous statements to the effect that appellant was a financial crook, and had been financially crooked with the bank, were made on those occasions. The suit was not filed until November 27, 1929, which was more than one year after the cause of action for slander had accrued, and such cause of action was therefore unquestionably barred by article 5524, R. S. 1925. Seven One Seven Tire Service v. Firestone Tire & Rubber Co. (Tex. Civ. App.) 288 S. W. 558, 559.

With regard to the action for libel, the evidence is insufficient to sustain such action. The cause of action for libel was predicated upon a letter written by the cashier of appellee bank, with the knowledge and consent of the president; and was in answer to an inquiry of an attorney representing Beck regarding the deposit by appellant of the proceeds of the sale of the cattle. It reads as follows: "Yours of yesterday to hand and in reply to same regarding the deposit you claim that Mr. Daughtry made in our bank will say that he did not deposit $440.00 with us. We did not know anything at all about Mr. Daughtry giving Mr. Beck the check and when we received same it was returned unpaid."

Appellant alleged in this connection that the "full meaning and intent of said letter was as follows: That the plaintiff L. S. Daughtry was a liar and a swindler, and that he had not deposited the proceeds of the sale of said Beck cattle in the sum of $400.00, or substantially that amount in the defendant bank; and that the said appellant had not informed said bank of the purchase of said cattle, and that the plaintiff was a liar, swindler and thief." We recognize that if the letter is ambiguous, it may be added to by allegations of innuendo; but where it on its face is unambiguous, we do not think it can be enlarged by innuendo. The specific inquiry in Beck's attorney's letter to the bank was whether appellant had deposited $440 to the credit of Beck, or as the proceeds of the sale of Beck's cattle. The evidence shows that appellant deposited $400 in cash, and according to appellant's statement that the bank knew that he had purchased Beck's cattle; whereas, the view of the bank was that it asked Daughtry where he got the money, and he told them that it was none of its business. We therefore conclude that the language of the letter is not susceptible of being enlarged by innuendo to the extent that it may be interpreted as branding appellant a liar, swindler, and thief. Enterprise Co. v. Wheat (Tex. Civ. App.) 290 S. W. 212; So. Pub. Co. v. Foster (Tex. Civ. App.) 36 S.W.(2d) 231; Fuson v. Abilene Gas & Electric Co. (Tex. Civ. App.) 219 S. W. 208; Harris v. Santa Fé Townsite Co., 58 Tex. Civ. App. 506, 125 S. W. 77.

With regard to the action alleged for bringing about or causing the arrest, imprisonment, and prosecution of appellant on account of the dishonor of his check by appellee bank, we have reached the conclusion that the acts and conduct of appellees are insufficient to sustain same. The gist of an action for malicious prosecution is that the plaintiff has improperly been made the subject of legal process to his damage. The essential element for such an action is a malicious prosecution of some legal proceeding without cause before some tribunal, and that such proceeding results favorably to the plaintiff. The scandal or humiliation, vexation, and expense resulting to a person thus wrongfully prosecuted furnishes the ground upon which an action for malicious prosecution may lie. 5 A. L. R. 1098, and notes and cases cited; Reed v. Lindley (Tex. Civ. App.) 240 S. W. 348.

The general rule of law...