Landa v. Obert

• Decision Date: 01 January 1876
• Citation: 45 Tex. 539
• Parties: JOSEPH LANDA v. JACOB OBERT.
• Court: Texas Supreme Court

45 Tex. 539

JOSEPH LANDA

v.JACOB OBERT.

Supreme Court of Texas.

1876.

APPEAL from Comal. Tried below before the Hon. J. P. Richardson.

Landa owned and operated a grist and flouring mill at New Braunfals for a number of years; Obert was his miller, and after several years was suspected by Landa of appropriating money received from the mill belonging to his employer. A detective was employed, and Landa became satisfied of Obert's guilt; lawyers were employed to bring suit, but they having a personal interview with Obert, a settlement was made, September 12, 1870, between them, whereby Obert paid Landa $1,185 in gold, and surrendered two notes he held, on Landa, amounting to $1,815; in the aggregate $3,000. It was also further agreed and settled that an account of Obert against Landa for $450, for labor, should be offset by articles--meal, brand, &c.--alleged to have been taken by Obert from the mill.

It seems to have been agreed that no publicity should be made of the affair, but the grand jury of Comal county indicted Obert for embezzling, and in the prosecution Landa was examined as a witness. On trial, Obert was acquitted. On January 9, 1871, Obert brought suit in the District Court of Comal county against Landa, to recover the money he had paid Landa, for the amount of the two notes he had surrendered, for account for services rendered, &c., and for slander, in that Landa had charged him with embezzlement and for malicious prosecution, laying damages at twenty thousand dollars; and also alleging that the money he had paid, the notes surrendered, and the settlement on 12th September, 1870, was procured by duress.

Landa, January 20, 1872, pleaded a general demurrer and general denial. On the same day a motion was made by him for change of venue, which was granted, and the case was transferred to Guadalupe county.

August 18, 1871, Landa, amending his answer, pleaded that the settlement of 12th September, 1870, was full and complete between the parties; that there was no force used, no threats or undue influence brought to bear to induce the settlement; that the same was freely and voluntarily made after Obert had consulted his friends, and that if the settlement should be set aside, then that he (Landa) was entitled to recover $25,000, the value of the money and proceeds of the mill which had been appropriated during the years of his employment.

The jury found a verdict as follows:

“We, the jury, find for the plaintiff for the amount of the two notes, $1,185 in gold, at eight per cent. interest, and for an account of $450, for services rendered, at eight per cent., and $1,000 for attorney's fees in this suit.”

Upon the verdict judgment was rendered, from which Landa appealed.

John Ireland and W. M. Rust, for appellant, cited Hill. on Torts, ch. 7, §§ 2, 3; Onslow v. Horne, 3 Wils., 177; Towns. on Lib. and Slan., p. 38; Wheeler v. Nesbitt, 24 How., 544; 2 Greenl. Ev., 153, 553; Ellis v. Thelman, 3 Cal., 3; McNeese v. Herring, 8 Tex., 151;Griffin v. Chubb, 7 Tex., 603;Hitson v. Forest, 12 Tex., 320;Chandler v. McPherson, 11 Ala., 916;Hall v. Suydam, 6 Barb., 83;Stone v. Crocker, 24 Pick., 81;Stone v. Swift, 4 Pick., 389; 1 Cooley's Blacks., 133; Brown v. Pierce, 7 Wall., 215:Phelps v. Zuschlag, 34 Tex., 371;Spaulding v. Crawford, 27 Tex., 155; Story on Cont., § 394; Chit. on Con., 193; Crowell v. Gleason, 1 Fairf., 325;Watkins v. Baird, 6 Mass, 506;Foshay v. Ferguson, 5 Hill., 154;Baker v. Morton, 12 Wall., 158; Vanderhoven v. Nette, 32 Tex., 184;Inhabitants of Worcester v. Eaton, 11 Mass., 379;Alexander v. Pierce, 10 N. H., 494;Eddy v. Herrin, 17 Maine, 338;Wilcox v. Howland, 23 Pick., 167;Worcester v. Eaton, 13 Mass., 371; Knapp v. Hyde, 60 Barb., (N. Y.,) 80; Barret v. French, 1 Conn., 356;Bosley v. Shannon, 26 Ark., 280; 1 Pars. on Con., 393; Fulmer v. Harmon, 3 Strobh., 576; Waller v. Cralle, 8 B. Monr., 11; Bingham v. Sessions, 6 Sm. & Marsh., 13; Chase v. Daynal, 7 Greenl., 134; Kerr on Fraud, 189, 190; Juzon v. Toulmin, 9 Ala., 662; Green v. Thompson, 2 Ired., 365; Dunn v. Chambers, 4 Barb., 376; 4 Kent, 452; Broom's Leg. Max., 201: Knibbs v. Hall, 1 Esp., 84; Brown v. McKinally, 1 Esp., 279; Cartwright v. Rowley, 2 Esp., 723; Morgan v. Palmer, 2 Barn. & Cress., 729; Tyler v. Smith, 18 B. Monr., 793; Elliott v. Swartwout, 10 Pet., 137; Marietta v. Slocumb, 6 Ohio N. S., 471; Reid v. Dunklin, 5 Ala., 205;Claiborne v. Tanner, 18 Tex., 78; 1 Chit. Cr. Law., 644; Bacon's Ab'r, tit. “VERDICT;” Jackson v. State, 21 Tex., 675;Langley v. Warner, 3 Comst., 327;Jenks v. Hallet, 1 Cai. R., 60; Dallam, 494; McConkey v. Henderson, 24 Tex., 212;Burton v. Anderson, 1 Tex. 98;Fowler v. Willis, 4 Tex., 46.

Waelder & Upson and W. E. Goodrich, cited Vanderhoven v. Nette, 32 Tex., 184;Wells v. Barnett, 7 Tex., 584; Walker v. McNeils, Dallam, 544; 1 Story Eq., 343; Fulmer v. Harmon, 3 Strobh., 576; Ledyard v. Brown, 27 Tex., 406;Raines v. Calloway, 27 Tex., 685;Mays v. Lewis, 4 Tex., 45;Smith v. Tucker, 25 Tex., 603;Kuhlman v. Medlinka, 29 Tex., 385;Moke v. Fellman, 17 Tex., 368;Smith v. Sherwood, 2 Tex., 460:Oliver v. Chapman, 15 Tex., 400;Cole v. Tucker, 6 Tex., 266; Sedg., on Dam., 26, 27, 38, 97, 98, 100; Bracken v. Neill, 15 Tex., 115;Flack v. Neill, 22 Tex., 255.

MOORE, ASSOCIATE JUSTICE.

This suit was brought by the appellee, Jacob Obert, to recover of appellant, Joseph Landa, damages for a slander, which he alleges said Landa published concerning him, also for damages on account of a malicious prosecution alleged to have been instituted against him by Landa, and to avoid a contract of settlement made between himself and Landa for duress, and to recover the money paid on said settlement, and the principal and interest due him on the notes and accounts surrendered to Landa on said settlement.

Quite a number of witnesses were examined on both sides in reference to each of these causes of action set up in the petition, and the jury were instructed upon them at length by the court. It seems, however, from the verdict, the jury only found in favor of Obert on the question of duress. It is therefore unnecessary for us to give a critical consideration to the questions presented in the record relating to the other grounds of action.

No objection has been taken to the charge of the court on the subject of slander; and from such examination as we have given it, we do not perceive that there is anything in it of which appellant can make any serious complaint.

But, in regard to malicious prosecutions, the charge seems not so unexceptionable. The jury were correctly told that, to entitle the plaintiff to recover on this branch of his suit, it must appear that he had been prosecuted by the defendant without a probable cause, and with a malicious intent, and that the prosecution was at an end.

We do not think, however, they were informed with sufficient clearness what in law would amount to probable cause, or the want of it.

What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case, is a pure question of fact. The former is exclusively for the court, the latter for the jury. “When the facts are in controversy the question of probable cause must necessarily go to the jury, and then the court must give such instruction as will enable them to draw the correct conclusion from the facts as they find them and the law thus given.” (Stone v. Crocker, 24 Pick, 81;Center v. Spring, 2 Iowa, 393; 2 Greenl. Ev., sec. 454.)

“No exclusive definition of probable cause,” as is said in Cole v. Curtis, 16 Minn., 195, “can be given, but that most approved by authorities, and which commends itself to us as the true one, is that laid down by Mr. Justice Washington in Munns v. Dupont et al. 3 Wash. C. C., where he defines it to be “‘a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’ 'DD' (4 Cush., 217; 2 Den., 617; 17 Ill., 63;Wheeler v. Nesbitt, 24 How., 545; Stansbury v. Fogle, 27 Md., 381.)

This defect in the charge, however, is one merely of omission, of which appellant cannot complain. But the instructions given by the court, that the jury might in assessing damages allow the plaintiff such expenses of prosecuting this suit as were proven, not to exceed the amount alleged in the petition, is of a different character. It is obvious, from the petition and evidence introduced by the plaintiff to prove the value of counsel fees for prosecuting this suit, that the court by this instruction intended the jury to understand that plaintiff was entitled to recover such fees as a part of his damages, if the jury found in his favor in this branch of the case.

When a party is entitled to vindictive damages, the jury in making up their verdict, may, no doubt, if they are so disposed, consider the plaintiff's expenses in prosecuting the suit. And if their verdict is not so grossly excessive as to warrant the court setting it aside, no inquiry can be made as to the inducement operating on their minds in reaching their conclusion. And there are, unquestionably, cases in which the court has suggested such expenses as a proper subject for the consideration of the jury in fixing damages that should be allowed the plaintiff. But we are of opinion that the decided weight of authority is against the proposition that the plaintiff has the right to claim his counsel fees, even in such cases, as a part of his damages. For if so, and the jury failed to allow them, it would seem their verdict should be set aside. But no case can be found, we imagine, where a verdict has been set aside on this account.

There is, unquestionably, some conflict in the decisions, and we readily admit that some of the earlier decisions of this court tend in some degree to maintain the proposition that when fraud or malice are of the gist of plaintif...