Missouri, K. & T. Ry. Co. v. Craddock

• Decision Date: 27 February 1915
• Docket Number: (No. 7259.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 174 S.W. 965
• Parties: MISSOURI, K. & T. RY. CO. v. CRADDOCK.
• Court: Texas Court of Appeals

Page 965

174 S.W. 965

MISSOURI, K. & T. RY. CO. v. CRADDOCK.

(No. 7259.)^†

Court of Civil Appeals of Texas. Dallas.

February 27, 1915.

Rehearing Denied April 3, 1915.

Appeal from District Court, Grayson County; W. J. Mathis, Judge.

Action by B. W. Craddock against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. C. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. Wolfe & Wood, of Sherman, for appellee.

RAINEY, C. J.

Appellee sued appellant to recover damages for malicious prosecution alleged to have been made by an agent of appellant at Parsons, Kan. Appellant presented a plea in abatement, denied generally the allegations in plaintiff's petition, denied the agency of the party inflicting the alleged wrongs, pleaded limitation, the existence of probable cause, and advice of counsel. The case was submitted to the jury on special issues, and, upon return of answers thereto, the court entered a verdict for plaintiff for $14,500, from which this appeal is taken.

Appellee's amended petition alleges that he is a resident citizen of the state of New Mexico, and that appellant is a private corporation incorporated under the laws of Kansas, and states his cause of action as follows:

"Plaintiff shows to the court that heretofore, to wit, on or about the 7th day of March, 1911, he was in the employ of said defendant in the said city of Parsons, in the state of Kansas, working in the capacity of a switchman; that at said time and place defendant also had in its employ one A. W. Hufford, who was working for said defendant as a special officer, and it was a part of his duty to guard the property of defendant, and particularly cars of merchandise intrusted to said defendant for transportation, and to detect, apprehend, and prosecute persons caught in the act of, or who were guilty of, any trespass against the property of said defendant and which were in violation of the criminal laws of said state; that on the date aforesaid said special officer, while acting within the scope of his employment, did accuse this plaintiff of the crime of theft and burglary, in that he accused him of breaking the seal on one of its freight cars and of entering said car and of stealing therefrom certain merchandise which was alleged to be contained therein; that plaintiff was detained and charged by said defendant before the civil officers of Labette county, in the state of Kansas, of said crimes, and was bound over for trial to the district court of said county, in which court he had a trial in November, 1911, and was found not guilty of said charges. Plaintiff shows to the court that said prosecution is now finally terminated, and plaintiff has been by the proper courts of said county and state duly acquitted of any and all charges preferred against him and on account of which he was arrested, as aforesaid. Plaintiff further shows to the court that he was subjected to many indignities, in that at the time of his arrest he was cruelly and unmercifully treated, in that he was openly and publicly charged with crime of theft, and also of the crime of burglary, and was struck and beaten, and forcibly detained, and shot in one of his feet, and deprived of his liberty. * * * Plaintiff shows to the court that he was not guilty of said charges or any of them, but that he had always lived an honest, honorable, upright life, and had always borne a good reputation for honesty and fair dealing among all his acquaintances; that, by reason of said charge so brought against him, and by reason of such treatment of him by defendant, plaintiff was greatly damaged in his reputation, character, and fair name, not only among his friends and acquaintances, but with strangers and the public generally. Plaintiff shows to the court that all of the actions of said defendant hereinbefore charged were recklessly, carelessly, willfully, wantonly, and maliciously done, without probable or sufficient cause of believing plaintiff guilty of the charge preferred against him. Plaintiff further shows to the court that he had a good position with said defendant at said time, and was earning the sum of, and his time was worth, $100 per month, and but for such accusation and treatment hereinbefore alleged he would have continued to have earned said sum, and more; that, on account of the wound received, as hereinbefore alleged, plaintiff's time was wholly lost for the space of about 15 months, and he was so crippled and wounded that he was not only unable to work during said time, but his capacity to labor and earn money in the future has been greatly depreciated thereby; that said wound occasioned him much physical pain and mental anguish, and that he will so suffer as long as he may live; that said wounded member has become diseased, in that the same refuses to heal, and, since receiving said gunshot wound, plaintiff has been troubled with rheumatism, from which he had never suffered theretofore, and he alleges and charges that such condition was produced and brought about by said injury so inflicted upon him by said special officer in the employment of defendant as aforesaid. He further shows to the court that on account of said charge so preferred against him, and on account of the prosecution of him for such offense, he has been occasioned and caused to suffer much mental anguish and humiliation, and that he will always suffer in mind on account thereof. Plaintiff further shows to the court that it was necessary for him to employ counsel to defend himself against said charge, and to employ physicians for the purpose of attending his wounds, and that for such attorneys' fees he has paid out and expended the sum of $250, and for doctors' bills necessarily incurred, the further sum of $100."

The evidence substantially established the allegations of the petition.

Appellant complains: First, on the ground that the court overruled its plea in abatement, and presents the following proposition:

"Comity does not require and the courts of Texas will not exercise jurisdiction over a civil suit of a citizen of a foreign state, arising in a foreign state, out of a violation of the criminal laws of a foreign state, by a corporation of such foreign state, when the exercise of such jurisdiction will deprive the foreign corporation of defenses it would have in the state of its residence, when no good reason exists for prosecuting the suit in this state instead of the state in which it arose, and where the courts of the state where the cause of action arose would decline to entertain jurisdiction of the suit of a citizen of Texas under like circumstances."

Appellee's petition alleged that he was a citizen of New Mexico, and that defendant was "duly incorporated under the laws of the state of Kansas, owning and operating many lines of railway, some of which entered into the state of Texas, where it has a local agent, to wit, W. A. King, residing and representing it in Grayson county." Appellant's agent was duly served in Grayson county, and "there is nothing in the record of this case calling in question the sufficiency of the service of citation on appellant to require it to appear and answer this suit."

The action pleaded by appellee is transitory in its nature, and can be prosecuted in any court obtaining jurisdiction of the defendant. Railway Co. v. Godair, 39 Tex. Civ. App. 298, 87 S. W. 871; Railway Co. v. Keller, 33 Tex. Civ. App. 358, 76 S. W. 801; Railway Co. v. Smith, 34 Tex. Civ. App. 612, 79 S. W. 340; Banco Minero v. Ross, 172 S. W. 711.

In this case the district court of Grayson county, Tex., had jurisdiction. The appellant had a local agent residing in said county, upon whom service was duly had, and, having jurisdiction, it properly proceeded to adjudicate the same. In Railway Co. v. Godair, supra, the court said:

"We think it a correct proposition of law that liability in a transitory action may be enforced, and the right of action pursued, in the courts of any state which can obtain jurisdiction of the defendant, without regard to where the wrongdoer or the person injured resided, or where the injury was inflicted; and it has been practically so held."

In Banco Minero v. Ross, supra, lately decided by our Supreme Court, it is said, in speaking of the action:

"It was accordingly transitory in its nature, and could be prosecuted in any court properly obtaining jurisdiction of the person of the defendant. Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127; 2 Wharton on Conflict of Laws, § 478a."

There is no such dissimilarity between the laws of Kansas and the laws of Texas that trying the case in Texas would deprive appellant of any substantial right.

The plea in abatement was properly overruled.

The second assignment of error is that the court erred in overruling defendant's special exception, which was, in effect, that the petition showed it to be an action for libel, and was barred by one year's limitation. The exception was leveled at that part of the petition which alleged, in effect, that he had been charged by defendant with burglary and theft, etc.; that he was damaged in reputation, character and fair name, etc., thereby. These allegations partake of a cause of action for libel and slander, but, when the acts charged are joined with charges for malicious prosecution, false imprisonment, and assault as growing out of one continuous transaction, they are permissible, and are controlled by the law governing actions for malicious, false imprisonment, etc. Kleinsmith v. Hamlin, 60 S. W. 994; Railway Co. v. Griffin, 48 S. W. 542. The petitions show appellee to have been acquitted of the charges in the prosecution by the Kansas court, and within 12 months thereafter he filed his suit to recover damages for malicious prosecution; hence limitation had not run, and there was no error in overruling the exception.

The third and fourth assignments of...