First State Bank v. Parker, 8423.

• Decision Date: 30 April 1930
• Docket Number: No. 8423.,8423.
• Citation: 28 S.W.2d 269
• Parties: FIRST STATE BANK OF LYFORD v. PARKER.
• Court: Texas Court of Appeals

Page 269

28 S.W.2d 269

FIRST STATE BANK OF LYFORD v. PARKER.

No. 8423.

Court of Civil Appeals of Texas. San Antonio.

April 30, 1930.

Rehearing Denied May 21, 1930.

Appeal from District Court, Willacy County; A. M. Kent, Judge.

Suit by T. B. Parker against the First State Bank of Lyford. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

A. B. Crane, of Raymondville, and Graham, Graham & Graham, of Brownsville, for appellant.

R. S. Dorsett and Gerron & Gerron, all of Raymondville, for appellee.

SMITH, J.

Appellant fairly states the nature and result of the suit, as follows:

"The appellee, T. B. Parker, sued the appellant, First State Bank of Lyford, Texas, to recover $25,000.00 actual damages, alleged to have been suffered by said appellee growing out of the publication of a certain instrument, claimed by the appellee to have been published by the duly authorized and employed servant and cashier of the appellant, one Kriss Cloninger, by fastening said instrument upon a bale of lint cotton in the public cotton yard in the town of Lyford, Texas, and upon the allegation that the alleged publication was willfully, maliciously and fraudulently made, appellee also sought to recover $25,000.00 exemplary damages.

"The instrument claimed to have constituted the libel, and alleged to have been published by the appellant, as aforesaid, was as follows:

"`List of Crop Mortgages Held by First State Bank, Lyford, Tex.

"`For the protection of the buyer all checks covering cotton purchased from these parties should be made payable to the First State Bank, Lyford, Texas, and the seller: and the check delivered to said bank, otherwise the buyer stands liable for the conversion of mortgaged property.

                                           "`T. B. Parker'
                

"(And about 100 other citizens of the county).

"As a basis for the recovery sought, appellee alleged that his good name, character and reputation for honesty and integrity and as a man who pays his honest debts, had been greatly damaged and that he had suffered great humiliation, distress of mind, mental pain and agony.

"The appellant answered by way of general demurrer and general denial, and especially pleading the facts in connection with said instrument,—denying especially that it, or any one authorized to act for it published the instrument in the cotton yard, as complained of by appellee, and especially alleging that it, in a privileged transaction, had delivered to one Mitchell a copy of the instrument in question, and that the said Mitchell, who was not the agent or representative of the appellant bank, had posted said instrument in the cotton yard without the authority, knowledge or consent of the appellant bank, or anyone authorized to act for it, and that as soon as the bank learned that said instrument had been so posted by said Mitchell, it, acting through its president, immediately went and tore down said instrument."

The court, after peremptorily directing the jury to return a verdict for appellee "for at least nominal damages," submitted the question of the amount of actual damages and also submitted the issue of malice and amount of exemplary damages. The jury found for appellee in the sum of $325 actual damages, but, disagreeing thereon, failed to resolve the issue of...