Miller v. Fenner, Beane & Ungerleider

Decision Date01 November 1935
Docket NumberNo. 1501.,1501.
Citation89 S.W.2d 506
CourtTexas Court of Appeals

J. Cleo Thompson, Edward C. Meek, Esir Tobolowsky, and Grady Niblo, all of Dallas, for plaintiff in error.

Eckford & McMahon and Smithdeal, Shook, Spence & Bowyer, all of Dallas, for defendants in error.


This is an action primarily seeking the recovery of damages for false imprisonment. J. P. Miller brought the suit against the members composing the copartnership of Fenner, Beane & Ungerleider, and against Fidelity & Deposit Company of Maryland, and Hartford Accident & Indemnity Company. Plaintiff alleged, in substance, that the defendants entered into a conspiracy to cause his arrest without warrant, in pursuance of which he was arrested without warrant by members of the Dallas police department, in which transaction he was assaulted and restrained of his liberty, and by reason whereof he suffered damages, actual and exemplary.

The defendants pleaded a general demurrer, general denial, and special pleas deemed unnecessary particularly to notice. The case was submitted to a jury upon special issues, only a few of which were answered. By such partial verdict the jury found that at the time the officer Parker arrested the plaintiff he had been informed by some reputable person, and believed at the time of the arrest that the plaintiff had in his possession securities which had been stolen; that Captain Bunch of the Dallas police had not assaulted plaintiff; that officer Parker had not assaulted plaintiff; that the stock certificates which were in the possession of plaintiff at the time of his arrest had been stolen; that at the time of plaintiff's arrest he was not in a suspicious place under circumstances which reasonably showed that he had received property which had been acquired by another by theft.

Questions submitted to the jury and not answered sought to elicit findings as follows: (1) Whether the defendants directed or requested the arrest of plaintiff. If so (2) which of the defendants directed or requested such arrest. And if the last-named question was answered (3) in what manner, if any, did said defendants, if any, direct or request such arrest. The jury was directed to answer the last question "none," or by writing upon lines provided (a) the language, if any, used by the defendant; (b) the acts, if any, used by the defendant; and (c) the conduct, if any, used by the defendant in directing or requesting the arrest of plaintiff. (4) In this special issue, the jury was directed that if they had answered No. 3 by writing the language used, then to answer by giving the date such language was used, place where the same was used, the name of the person or persons using such language, and the person or persons to whom such language was used. They were further directed that if they had answered by writing the conduct used by the defendants in directing or requesting the arrest, then to give the date, place, parties present at the conduct, giving in detail all such conduct. (5) Whether the officer Parker arrested the plaintiff on his own responsibility. (6) What amount of money would compensate the plaintiff for actual damages. (7) What amount of money would compensate the plaintiff for exemplary damages.

Upon the discharge of the jury, plaintiff presented a motion to the court to declare a mistrial. The defendants presented a motion for judgment upon the answers of the jury to the special issues upon which they had made findings, and also to enter judgment in favor of the defendants and against the plaintiff non obstante veredicto, setting forth as reasons for the latter that the undisputed evidence showed that the officer, Parker, in arresting the plaintiff, acted upon his own responsibility; that the undisputed evidence showed that the defendants, neither singly nor collectively, directed or requested or procured the officer arresting Miller to make such arrest. The trial court overruled the motion of the plaintiff and sustained the motion of the defendants, and entered judgment in all things purporting to be rendered upon the verdict of the jury as found and returned.

We think the judgment from which the appeal is prosecuted by plaintiff Miller must properly be regarded as a judgment based upon the verdict of the jury, and not a judgment rendered notwithstanding the verdict. The record shows no notice to the plaintiff of a motion to render a judgment non obstante veredicto, and there is no recitation of plaintiff's appearance upon the hearing of the motion. The reasons given to support the motion for judgment non obstante veredicto were not such as come within the purview of the statute (Vernon's Ann.Civ.St. art. 2211) authorizing such judgment, since the issues which it was contended were established by the undisputed evidence were among those not answered. The statute has no application to issues submitted to, but not found by, the jury. Wagstaff v. North British & Mercantile Ins. Co., Ltd. (Tex.Civ.App.) 88 S.W.(2d) 550.

Defendants in error by their first counter proposition contend, among other things, that plaintiff failed to prove any act of the defendants, or any of them, showing that they, or any of them, caused or contributed to cause his arrest and detention, but that, on the contrary, the uncontradicted evidence shows that the arresting officer acted on his own initiative and that alone, by reason whereof it is asserted that plaintiff is not entitled to any recovery from them, or any of them, and the court should have granted their motions for an instructed verdict, and if anything complained of by plaintiff was error, it was harmless and immaterial, and the judgment should be affirmed. This counter proposition being one of nineteen under the heading "Counter Propositions or Points upon Which Defendants Rely" presents, preliminarily, an important question of practice. In so far as the facts which it is contended in said counter proposition were established by the undisputed evidence were embraced in the issues or questions submitted to the jury and constituted material issues made by the pleadings and upon which the jury returned no verdict, we are of the opinion that this court is without lawful authority to consider whether the undisputed evidence established such issues and to affirm the judgment solely upon that basis. In order to present that question it was necessary that defendants in error object to the submission of the issues upon the ground that there was no evidence to authorize their submission, and to present the court's action to this court for review under cross-assignments of error. Only one of these requisites is reflected by this record. Defendants in error made proper objection, but they filed no cross-assignments of error.

Assignments of error are designed to accomplish several distinct and important purposes. One is to point the court to the particular rulings or ground of error on which the party intends to rely for reversing the judgment. Fisk v. Wilson, 15 Tex. 430, 435; Byrnes v. Morris, 53 Tex. 213; Legon v. Withee, 25 Tex. 350; Clements v. Hearne, 45 Tex. 415; Randall v. Carlisle, 59 Tex. 69. It is no less certainly one of the functions of an assignment of error to apprise the adverse party of the rulings, actions, or other parts of the proceedings as to which it is his purpose to contend that there was error. Same authorities. The ultimate purpose to be served by pointing out to the court by means of assignments of error, the particular ruling, action, or part of the proceedings is to conserve the time of the court and enable the court to accomplish in a given time a greater amount of work and thereby better serve the public interest. This idea is particularly stressed in decisions such as Clements v. Hearne, supra; Randall v. Carlisle, supra; Pearson v. Flanagan, 52 Tex. 266; Legon v. Withee, supra. To accomplish such purpose it was necessary to give to assignments of error the effect of waiving all errors except fundamental errors, in any of the rulings, actions, or parts of the proceedings not embraced in the assignments of error. Panhandle & S. F. Ry. Co. v. Burt (Tex. Civ.App.) 71 S.W.(2d) 390, and authorities there cited. Regarding the purpose of the law and the one exception, it is correct to say that the authority of the Courts of Civil Appeals to review the rulings, actions, or other parts of the proceedings in a suit in the trial court is limited to errors particularly pointed out in assignments of errors and to fundamental errors. Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844. See, also, other authorities cited in Panhandle & S. F. Ry. Co. v. Burt, supra.

If it becomes necessary for an appellee or a defendant in error to invoke the authority of the appellate court to determine the existence of error, not fundamental, in any ruling, action or other part of the proceedings of the trial court whether to obtain further relief in a judgment awarding partial relief, or to sustain the judgment in his favor upon some other basis, or for some other reason than that upon which it was predicated by the trial court, then it is necessary to present such matters by cross-assignments of error. Western Union Telegraph Co. v. Cates (Tex.Com.App.) 291 S.W. 193, 194; Garrison v. Dallas Ry. & Terminal Co. (Tex.Civ.App.) 33 S.W.(2d) 295, 296; Galveston, H. & S. A. Ry. Co. v. Reitz, 27 Tex.Civ.App. 411, 65 S.W. 1088; Clay County v. Merchants' & Planters' Bank (Tex.Civ.App.) 264 S.W. 163; W. L. Moody Cotton Co. v. Heard (Tex.Civ. App.) 243 S.W. 594; Hill v. Lester (Tex. Civ.App.) 69 S.W.(2d) 474; Garitty v. Halbert (Tex.Civ.App.) ...

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