Foster v. Bourgeois

• Decision Date: 09 May 1923
• Docket Number: (No. 6594.)
• Citation: 253 S.W. 880
• Parties: FOSTER v. BOURGEOIS et al.
• Court: Texas Court of Appeals

253 S.W. 880

FOSTER v. BOURGEOIS et al.

(No. 6594.)

Court of Civil Appeals of Texas.

May 9, 1923.

Rehearing Denied June 6, 1923.

Appeal from District Court, McLennan County; Jas. P. Alexander, Judge.

Action by Mrs. Minnie L. Bourgeois and husband against W. M. Foster. Judgment for plaintiffs, and defendant appeals. Affirmed.

S. P. Ross, of Waco, for appellant.

Witt, Terrell & Witt, of Waco, for appellees.

BLAIR, J.

This suit was instituted by appellees, Mrs. Minnie Ludlow Bourgeois, joined pro forma by her husband, Albert Bourgeois, against the appellant, W. M. Foster, to recover damages for alleged malicious prosecution. The appellees alleged that on or about February 23, 1921, appellant caused a complaint to be filed in the justice court, precinct No. 1, McLennan county, Tex., charging the appellee Mrs. Minnie Ludlow Bourgeois with a felony, to wit, the offense of swindling over $50, and caused a warrant to be issued for her arrest; that appellant had himself appointed as a deputy sheriff of McLennan county, Tex., and proceeded with said warrant to New Orleans, La., where appellee Mrs. Minnie Ludlow Bourgeois was living with her husband, for the purpose of having her arrested by virtue of said warrant; and, based thereon, the said appellant caused to be filed in the proper court in New Orleans, La., a complaint charging said appellee, Mrs. Minnie Ludlow Bourgeois, with being a fugitive from justice, and based upon said last charge caused her arrest by the police authorities of New Orleans, La., on the 14th of March, 1921. That after her arrest she was compelled to give an appearance bond, which she did, and was later arraigned on said charge, and exonerated and discharged. That thereafter, on or about the 1st day of April, 1921, said appellant caused another complaint to be filed in the justice court, precinct No. 1, Dallas county, Tex., against the appellee Mrs. Minnie Ludlow Bourgeois, charging her with a felony, to wit, the offense of swindling of Foster of $100, and caused to be issued thereon a warrant of arrest for her, which he caused to be delivered to the officers in New Orleans, La., where appellee Mrs. Minnie Ludlow Bourgeois still lived with her husband, for the purpose of having her arrested again; and based upon said warrant, caused the proper authorities of New Orleans, La., to again charge her with being a fugitive from justice; and on or about the 15th of April, 1921, she was again arrested and confined in jail, in the city of New Orleans, La., for a considerable period of time. That thereafter she was permitted to execute an appearance bond, in the sum of $500, and released from custody of the officers, until she was finally arraigned on said charge, and was again exonerated and finally discharged. That thereafter appellee Mrs. Minnie Ludlow Bourgeois voluntarily came to Waco, Tex., and caused the case filed against her in the justice court there to be set down for a hearing. A subpœna was issued for appellant, whose name appeared on the back of said complaint, but he failed to appear, and the case was dismissed for want of prosecution. A like proceeding was had in the case filed against her in the Dallas justice court, and the appellant failing again to appear as a witness, the proceedings were likewise dismissed for want of prosecution.

Appellees alleged further that appellee Minnie Ludlow Bourgeois was not guilty of the offense of swindling as charged in the complaints filed in Waco and Dallas, Tex., by appellant, nor of being a fugitive from justice; and that said complaints were filed by appellant maliciously and without probable cause, and for the malicious and willful purpose of injuring her. That as a result thereof she was forced to employ attorneys, and incur other expenses in connection with her defense in said cases; and that her reputation was injured by the great newspaper publicity given the affair, and her feelings humiliated. That appellant knew she was not guilty at the time he filed the same; and by reason of said complaints, her arrest, etc., appellees had been damaged in the sum of $10,000 actual and $20,000 exemplary damages.

The appellant answered by general denial, and further alleged that in January, 1921, the appellee Mrs. Minnie Ludlow Bourgeois represented to him that she owed a doctor bill of $100 in the city of Dallas. That she had no means to pay same except to borrow the money from appellant. That upon said representation, appellant let said Minnie Ludlow Bourgeois have said sum of $100, when in truth and in fact the said Minnie Ludlow Bourgeois did not owe any doctor bill and had in her possession and control $5,000 in cash, and that said representations were made to this appellant to fraudulently deprive him of said $100. That about February 2, 1921, the said appellee, Mrs. Minnie Ludlow Bourgeois, then Minnie Ludlow, represented to appellant that she had certain diamonds which were pawned with the Provident Loan Company of Dallas, Tex. That said diamonds were about to be sold to pay the money which they secured. That she had no means or way of redeeming said diamonds except to borrow $75 from this appellant. That she represented to this appellant if he would advance her said $75 she would immediately redeem said jewelry and would deliver same to him to hold as security for said sum. That appellant, relying upon said representations, gave her said sum of $75, but said representations of said appellee were false, in that she did not owe any obligation whatsoever at that time, to the Provident Loan Company, and said loan company was not threatening to sell her diamonds or any part thereof. That had she owed said obligation, she had plenty of means to pay same, and she had at that time, in her possession, and subject to her control, the sum of $5,000 cash. That appellant did not know of the falsity of said representations at the time he paid out said money, and that by reason of her false and fraudulent representations she had deprived him of said sums of money and defrauded him of same, and he prayed that appellee take nothing by her suit.

The case was tried before a jury upon special issues, and the jury found in substance:

That W. M. Foster procured, or caused, the complaint to be filed in the justice court of McLennan county, Tex., charging appellee with the offense of swindling.

That he did not have probable cause for believing said charges and said complaint to be true.

That he was actuated by malice in so doing.

That he caused the complaint in question to be filed in the justice court of Dallas county.

That he did not have probable cause for believing said charges and said complaint to be true.

That he was actuated by malice in filing said charges.

That the appellee suffered actual damages in the sum of $2,000.

That the appellee was entitled to exemplary damages in the sum of $8,000.

That before the complaint was filed in McLennan county, appellant did not submit a full statement of the facts and circumstances connected with the charge, to the county attorney of McLennan county, Tex.

That at the time the complaint was filed in Dallas, Sim Sheppard did not submit a full, fair, and correct statement to the county attorney of Dallas county, of the facts relative to said complaint.

Upon the findings of the jury, judgment was entered in favor of the appellee Mrs. Minnie Ludlow Bourgeois in the sum of $10,000, with interest from date of said judgment.

Appellant, W. M. Foster, then duly filed his motion for new trial, which said motion was, by the court, overruled. Appellant gave notice of appeal, perfected his appeal, and said cause is now before this court for revision upon errors assigned in the motion for a new trial.

The proof showed that appellant, then a traveling salesman and a married man of about 35 years of age, met appellee Mrs. Minnie Ludlow Bourgeois, then a single girl about 19 or 20 years of age, at San Antonio, Tex., where she lived with her father; her mother being dead; that they became infatuated with each other. From this infatuation, an illicit and immoral relationship began between them, which lasted for a period of 20 years, with only slight intermissions, when they apparently quarreled, or when appellee sought to break the relationship and obtain employment; but each time she was induced to come back by appellant, who insisted and tried to always impress upon her that he was doing a great favor to her. During this time appellant lavished upon her his wealth, expending, according to his testimony, approximately $3,000 annually for the last 15 years of their relationship. Appellant kept appellee at San Antonio, Waco, Beaumont, Dallas, and other places in Texas, a part of the time under the guise of having her employed as a saleswoman for various business enterprises of appellant, and a part of the time she traveled with him. When separated, they corresponded in the most endearing way, and were in almost daily connection by telephone or wire.

Their relationship became known to appellant's family, who apparently gave them much trouble in their degrading enterprise. Clandestine meetings and trips were made as a result of this discovery, in order that secrecy of such might be kept from appellant's family. Appellant, under the guise of employing appellee as a saleswoman, sent her to Canada, in the interest of one of his business enterprises, where he visited her. She apparently left appellant for a short period of time on one occasion, and obtained employment in Birmingham, Alabama, but under the persuasion of appellant she returned and resumed their old relations. During the last two years or more of their relationship, appellant kept appellee at a hotel, in Dallas, paying her room rent and expenses. They stored their furniture, and many quarrels and differences arose as to the payment of expenses. Appellee during these later years became ill, and needed medical attention, which was a source of difference as...