Patterson & Wallace v. Frazer

• Decision Date: 31 January 1906
• Citation: 93 S.W. 146
• Parties: PATTERSON & WALLACE v. FRAZER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

93 S.W. 146

PATTERSON & WALLACE v. FRAZER.^*

Court of Civil Appeals of Texas.

January 31, 1906.

Rehearing Denied February 28, 1906.

Appeal from District Court, El Paso County; J. M. Goggin, Judge.

Action by Ella Frazer against Patterson & Wallace. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Beall & Kemp and Maury Kemp, for appellant. S. P. Weisiger and A. Seymour Thurmond, for appellee.

NEILL, J.

This is the second appeal from a judgment in favor of appellee in this case. The opinion of this court on the first appeal will be found in 79 S. W. 1077, and in 9 Tex. Ct. Rep. 1004, where will be found a full statement of the nature of the action, which need not be repeated. In the opinion referred to many of the questions of law presented here were, after thorough and mature consideration, disposed of; and since, upon reconsidering them on this appeal, our opinion on none has undergone any change, we will, in this opinion, without discussing such questions, simply state the conclusions we then reached. The judgment now appealed from is for $2,100, of which $1,050 are actual, and $1,050 exemplary, damages.

Conclusions of Fact.

The evidence in the transcript of the record is reasonably sufficient to warrant the following conclusions: On or about February 1, 1901, the appellee, Ella Frazer, an unmarried woman, employed appellants, C. B. Patterson and George E. Wallace, composing the firm of Patterson & Wallace, attorneys at law, to institute and prosecute in the district court of Reeves county, Tex., a suit in her name and for her benefit against John Moore and his wife, Ellen, for the sum of $10,000 damages occasioned appellee for slanderous language uttered and published of and concerning her by Ellen Moore, the wife of John, on the ____ day of May and June 19, 1900, she (plaintiff) paying them (defendants) a cash fee of $250, for which they agreed to institute and prosecute to final termination such suit. That suit, on plaintiff's cause of action against John Moore and wife, which she employed defendants as attorneys at law to institute and prosecute, was on February 18, 1901, in pursuance of their contract of employment, instituted by defendants by filing in the district court of Reeves county, Tex., an original petition for plaintiff against Moore and wife for $10,000 damages by reason of the alleged slanderous language uttered by Mrs. Moore of and concerning plaintiff, upon which said suit was based, it being as follows: "The Frazer girls need not be talking about Marie Howard, for at any time they want to it can be proven that the child born in San Antonio is not Mrs. Durrell's child, but Ella Frazer is its mother." The undisputed evidence shows that such language was uttered in the presence and hearing of one Mrs. Shertz by Mrs. Moore in May, 1900, of and concerning appellee, Ella Frazer, an unmarried woman. Such language was false, was maliciously uttered, and imputed that appellee had been guilty of the offense of fornication. That after said suit had been instituted against Moore and wife, appellants represented to appellee and induced her to believe that it was unnecessary for her to file a cost bond in the case, and afterwards promised her that they would attend to filing the cost bond when it became necessary; appellee being ready and able to make such bond. Appellants, after a rule for costs had been entered against appellee, negligently failed to attend to having such bond filed in time, and by reason of such negligence and their representations to appellee, she having failed to make and file said bond, her cause was dismissed under the rule for costs; the appellants having negligently failed to appear before the court when the order of dismissal was made. After said cause was dismissed by the court for want of a cost bond, appellants negligently failed to present a proper motion to the court containing the necessary and proper allegations to have said cause reinstated, and made no effort on said motion to show that appellee had a meritorious cause of action against Moore and wife. Upon the dismissal of said case, appellee's cause of action for damages against the defendants therein, being barred by the statute of limitation, was by reason of said negligence of appellants lost to appellee; said negligence being the proximate cause of said loss. That had appellee's cause of action not been lost by the negligence of appellants as aforestated, and had her suit embracing said cause of action been managed and prosecuted by them with that degree of care, diligence, knowledge, and skill a practicing lawyer of ordinary skill, prudence, and knowledge of the law would have exercised in cases of like character under like circumstances, the appellee would have recovered in said suit against Moore and wife, and collected from them, a judgment for $1,050 actual and $1,050 exemplary damages, which sums, amounting in the aggregate to $2,100 she has lost by the negligence of appellants, which proximately caused such loss and damage to her.

Conclusions of Law.

The first assignment of error claims that the damages sought to be recovered in this suit are too remote to support an action, and for this reason appellants' special exception to appellee's petition based upon this ground should have been sustained. In passing upon a phase of the case involving this question on the prior appeal, it was said: "In an action for tort, the injured party is entitled to recover such damages as will compensate him for the injury received, so far as it might reasonably have been expected to flow from the circumstances, such as, according to common experience and the usual course of events, might have been reasonably anticipated. He who is responsible for a negligent act must answer for all injurious results which flow therefrom by ordinary, natural sequence, without the interruption of any other negligent act or overpowering force. The damage is not too remote, if, according to the usual experience of mankind, the result was to be expected, If, therefore, plaintiff had a cause of action against Moore and wife for slander, which is a question of fact, for which suit was pending, the loss of her action would inevitably follow from the negligence of her counsel causing the dismissal of her suit, when barred by limitations, and, after its dismissal, in so negligently preparing and presenting a motion to reinstate the suit as would not authorize the court to grant it. If, then, were it not for such negligence, it can be reasonably shown that she would have recovered judgment and collected anything on it, she has lost by such negligence of defendants what she would have otherwise collected; and the fact that a part of the judgment which might reasonably have been expected to be recovered and collected might have been for exemplary damages would make no difference. It is known that judgments for damages, actual and exemplary, are recovered and collected for slander, and it will not do to say that attorneys at law are not liable to their clients for negligence in managing such cases, because of the difficulty a jury may have in arriving at the damages occasioned by such negligence, for this would absolve them from all liability for negligence in such cases." See Lynch v. Munson (Tex. Civ. App.) 61 S. W. 141; T. & W. Tel. Co. v. Mackenzie (Tex. Civ. App.) 81 S. W. 582; Fraser v. Mining Co., 9 Tex. Civ. App. 210, 28 S. W. 714; Joske v. Pleasants, 15 Tex. Civ. App. 433, 39 S. W. 586; McLane v. Maurer, 66 S. W. 693. To deny an injured party the right to recover actual damages in cases of this character, because they are of a nature that cannot be certainly measured, would be to enable the defendants to profit by and speculate upon their own wrongs. Allison v. Chandler, 11 Mich. 555; Gilbert v. Kennedy, 22 Mich. 129. That the cases in which damages have been recovered against attorneys for negligently failing to prosecute suits of their clients are generally where the cause of action was a liquidated demand does not limit the right of the client's recovery of damages on account of the attorney's negligence to such cases. The law cannot, when holding all others liable for damages proximately caused by their negligence (though difficult of ascertainment), justly exempt attorneys from the operation of the rule by which it measures the damages consequent on the wrongs of others. This also disposes of the twentieth assignment of error, which complains of the court's refusal to give a special charge, requested by appellants, to the effect that the damages sued for are too remote, speculative, and conjectural to be recovered.

It is urged by the second assignment of error that the alleged defamatory language is not actionable per se, and, for that reason, the court should have sustained appellant's special exception to appellee's petition, no special damages flowing from such language to plaintiff having been alleged. The same point was insisted upon on the prior appeal and decided adversely to appellants. This decision was expressly based upon the causes of Zeliff v. Jennings, 61 Tex. 467, and King v. Sassaman (Tex. Civ. App.) 54 S. W. 304, 64 S. W. 937, which we observed, broke away from the common law—the rule of decision in this state. In the case of Hatcher v. Range (Tex. Sup.) 81 S. W. 239, the question whether language orally uttered imputing the want of chastity to an unmarried female is actionable per se being involved, the Court of Appeals of the Second District, being unable to adopt the view expressed in the case of King v. Sassaman, followed by us in our former opinion, that the decision in Zeliff v. Jennings changed the common-law rule, certified the question to the Supreme Court, and it was answered: "That, under the law as it now exists in this state, words spoken or written, which `falsely and maliciously, or falsely and wantonly' impute to a female want of chastity, are actionable without showing...