Lindsay v. Woods

• Decision Date: 09 April 1930
• Docket Number: No. 3388.,3388.
• Citation: 27 S.W.2d 263
• Parties: LINDSAY v. WOODS et ux.
• Court: Texas Court of Appeals

27 S.W.2d 263

LINDSAY v. WOODS et ux.

No. 3388.

Court of Civil Appeals of Texas. Amarillo.

April 9, 1930.

Appeal from District Court, Dallas County; Joel R. Bond, Judge.

Suit by Pearl C. Lindsay and husband against John W. Woods and wife, subsequently dismissed except as to plaintiff named. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Claud C. Westerfeld, of Dallas, for appellant.

S. P. Sadler, of Dallas, for appellees.

JACKSON, J.

This suit was instituted by Mrs. Pearl C. Lindsay and her husband, W. T. Lindsay, as plaintiffs, in the district court of Dallas county, Tex., against the defendants, John W. Woods and wife, Mrs. John W. Woods.

On October 8, 1928, with leave of the court, Mrs. Pearl C. Lindsay filed a first amended original petition, in which she alleged that she was married to W. T. Lindsay in October, 1927, and had never been divorced from him; that her husband, about May 1, 1928, permanently abandoned and deserted her and moved to the state of Mississippi, where he has since continued to reside; that the abandonment of plaintiff by her husband was caused by the acts and conduct of the defendants, and he refuses now to continue with her as a party plaintiff in this suit. She asks that she be permitted to prosecute her suit alone, without the joinder of her husband herein.

She alleged that in January, 1917, she was lawfully married to M. Cammack, from whom she was divorced in 1926; that while she lived with M. Cammack as his wife, she adopted a baby girl and named her Virginia Cammack; that soon thereafter, the defendants began threatening her and, in various ways, tried to get her to give up and abandon the adopted child, which she refused to do.

That the defendants insisted on and assisted her in getting a divorce from her first husband, from whom she received, in her property settlement with him, $2,500 in money and $1,800 in property.

That after the divorce was granted, she visited a sister at Sweetwater, Tex., and another at Dalhart, Tex. That the defendants, by misrepresentations made to her sister at Dalhart, forced plaintiff to leave her sister's home and she returned to Amarillo. That her former husband assisted her in getting her a room at Amarillo, but the defendants, because she would not abandon her adopted child, caused her former husband to have her charged, in the county court of Potter county, Tex., with lunacy, arrested, and placed in jail. That she was promptly acquitted of said charge, and the defendants caused her said former husband to again have her arrested on a complaint, charging her with lunacy, but said charge was dismissed.

That she secured a position in Amarillo, and went to work, but the defendants continued to threaten her and tell every one that she was insane, to cause her discharge. That her continued persecution by the defendants, incarceration in jail on charges of lunacy, and misrepresentations to her friends that she was insane, caused her friends and acquaintances to shun her and caused her great humiliation; that she left Amarillo and took her adopted baby to her mother's home at Sherman, Tex., in December, 1926, where she remained until February 14, 1927, when, on account of the continued threats of the defendants to have her charged with lunacy, she left her mother's home and went to Fort Worth.

That the defendants, on the 15th of February, 1927, filed a complaint against her in the county court of Tarrant county, Tex., charging her with lunacy; had her arrested and placed in the Arlington Heights Sanitarium, where she was not allowed to communicate with any one, consult a lawyer, or secure witnesses. That she was taken from the sanitarium to the courthouse, and the defendants, with other witnesses, testified against her in a lunacy trial, on March 1, 1927, but she was found to be of sound mind and acquitted on her own testimony.

That the defendants continued to persecute the plaintiff, and she finally left Fort Worth and went to Oklahoma City, where such persecution continued, and she returned from there to Dallas, Tex., in company with Mrs. Reece, who lived at Dallas.

That after she reached Dallas, the defendants had her confined in an insane asylum, and while therein or just prior thereto, her adopted baby was taken from her through the fraud and connivance of the defendants, who succeeded in having the district court of Dallas county adjudge her adopted child to be dependent and awarded to other parties, after which she was released from the sanitarium.

That she immediately employed an attorney to institute proceedings to regain her adopted child, and the defendants promptly renewed their threats that if she did not give up her adopted baby, they would again prosecute her for insanity; that she continued her efforts through the courts to regain possession of said child, and the defendants, on April 21, 1928, filed a complaint in the county court of Dallas county, again charging her with lunacy. That the day the case was set in the district court, to determine whether or not she should recover her adopted child, the defendants filed another complaint against the plaintiff, again charging her with lunacy, and had her arrested.

That she was thereafter tried on said complaints, found of sound mind, and acquitted.

That on account of the conduct of the defendants and their false statements and rumors, charging her with lunacy, and having her incarcerated on said charges, and having her illegally confined in sanitariums, she had been forced to expend all her money and property; that the defendants took from her the money she had left when she was placed in the sanitarium at Dallas, and expended it to defray her expenses while she was so illegally imprisoned.

That since 1926, the defendants have willfully and maliciously, and without probable cause, persecuted the plaintiff; contrived the destruction of her mind, character, and reputation; degraded her in the eyes of her friends and associates; exposed her to the hate and ridicule of the public; embarrassed and humiliated her; which caused her much trouble and expense.

That because of the conduct of the defendants, she was deprived of her friends; her second husband was induced to abandon and desert her; she was imprisoned in the Arlington Heights Sanitarium from February 15, 1927, to April 4, 1927; confined in the Timberlawn Asylum at Dallas from November 25, 1927, to January 26, 1928, illegally and without authority of law; has been prevented from obtaining and keeping employment, and has suffered great mental and physical pain, embarrassment, and humiliation, for all of which she seeks to recover $25,000 actual and $25,000 exemplary damages.

She alleges, in detail, facts which present a cause of action for slander, malicious prosecution, false imprisonment, and causing her second husband to abandon and desert her.

On June 14, 1929, the defendants, with leave of the court, filed their second amended original answer in this case, pleading a general demurrer, numerous special exceptions, a general denial, and specially alleged that the plaintiff was not mentally capacitated to have and maintain the suit against them, because she was at the date of the filing of the suit, and still is, of unsound mind.

The case was tried to a jury, and at the conclusion of the testimony, the jury, in compliance with a peremptory instruction of the court, returned a verdict against the plaintiff and in favor of the defendants.

The court, in compliance with the directed verdict, entered judgment that the plaintiff take nothing by her suit and that the defendants go hence without day and recover of her all costs by them incurred; that it appearing to the court that the suit was originally filed by W. T. Lindsay, joined by his wife, Pearl C. Lindsay, and that said W. T. Lindsay refused further to prosecute said suit. W. T. Lindsay was dismissed from said suit and the defendants allowed to recover from him all costs incurred by reason of the filing of the suit.

From the judgment in favor of the defendants and against Pearl C. Lindsay, she prosecutes this appeal.

The appellant assigns as error the action of the trial court in excluding her testimony to the effect that appellees had written letters to third parties in the state of Oklahoma, which appellant had read, stating that she was of unsound mind, violently insane, had tried to commit murder, and that they wanted to take from her the child she had adopted.

The appellees objected because such testimony was a conclusion of the witness; was hearsay; that the letters were the best testimony, and no predicate had been laid for the admission of secondary evidence.

The objection that the testimony was a conclusion of the witness is without merit. The witness would have testified to statements of the appellees, contained in the letters, and any conclusion expressed in the language of the letters was the conclusion of appellees and not the conclusion of the witness.

The law is settled that in all cases, the best evidence, of which the nature of the case admits, must be adduced, but it is equally well settled that secondary evidence of the contents of a written instrument which is beyond the jurisdiction of the court may be offered. "The objections that the evidence was hearsay, and a mere declaration of the witness, were not well taken or applicable. Upon the question as to whether secondary evidence may be introduced, when the original writing is beyond the jurisdiction of the court, and without notice or any evidence showing an effort to produce the original writing, we have found some conflict in the authorities. We do not believe that the judgment in this cause should be reversed because of the introduction of the copy of the letter, even if we were of the opinion that it was improperly admitted. We do not, however, rest our conclusion upon such ground, but we are of the opinion that, the original letter having been shown...