Rainey v. Old

• Citation: 180 S.W. 923
• Decision Date: 10 November 1915
• Docket Number: (No. 1488.)
• Parties: RAINEY v. OLD.
• Court: Court of Appeals of Texas

180 S.W. 923

RAINEY v. OLD.

(No. 1488.)

Court of Civil Appeals of Texas. Texarkana.

November 10, 1915.

Rehearing Denied November 25, 1915.

Appeal from District Court, Bowie County; W. T. Armistead, Judge.

Action by Hugh Rainey against W. M. Old. Judgment for defendant and plaintiff appeals. Affirmed.

J. S. Crumpton, of Texarkana, and O. B. Pirkey, of New Boston, for appellant. Johnson & Boswell, of New Boston, and C. A. Wheeler and J. Q. Mahaffey, both of Texarkana, for appellee.

HODGES, J.

The appellant sued the appellee for damages for an alleged malicious prosecution. This appeal is from a judgment in favor of the defendant below. The petition alleged, in substance, that in October, 1912, the defendant maliciously and without probable cause filed in the justice court in Bowie county a complaint, charging the plaintiff with the theft of a bale of cotton, and thereafter appeared and prosecuted the suit. The filing of this affidavit and the appearance of the defendant as a witness for the state and the final discharge of the plaintiff are admitted; but it is claimed in defense that, under the facts as known to the defendant at the time the complaint was filed, there was good cause for believing that the plaintiff had committed the offense of theft as charged, and that the defendant acted in good faith and without malice. The facts show that Rainey, the appellant, for the year 1912 had leased a tract of land from Mrs. Mollie Sturgeon which contained more land than he could cultivate; that Mrs. Sturgeon had authorized him to sublet a portion of this land to others. The second paragraph of the petition contains the following language:

"That during the spring of the year 1912 the plaintiff, Hugh Rainey, as the tenant in possession of the said farm and also as the agent of the said Mrs. Mollie Sturgeon, the owner thereof, did sublet a certain portion of said farm, to wit, about 30 acres of land, to one Wood Richardson, who was to plant and cultivate a crop, and this plaintiff was to receive one-fourth of all the cotton and one-third of all corn raised thereon by the said Wood Richardson, said amount being the rents contracted to be paid by the said Wood Richardson to plaintiff as rents for the use of said premises for the said year."

It is further alleged that in August following Wood Richardson, the tenant above referred to, abandoned the crop and premises, and removed from the state without paying the rents and advances due; that the plaintiff had, prior to that time, furnished supplies to the value of $16.95 to Richardson to enable him to make and gather a crop on the rented premises; that in order to protect himself plaintiff gathered about 1,500 pounds of the cotton, had it ginned and baled, and subsequently sold it for the sum of $55; that the money received from this sale was deposited in a local bank as follows: $13.75 to the credit of Mrs. Sturgeon for rents; $16.95, together with $8.70, to the plaintiff's credit for his advances and for services in gathering the crop; and $15.60 to the credit of the defendant, Old. It is averred that the defendant, knowing these facts, did maliciously and with the intent to injure the plaintiff make the complaint, charging plaintiff with the theft of that bale of cotton. The testimony was undisputed that Richardson rented 38 acres of land, a part of the Sturgeon farm, for the year 1912, for which he was to pay the usual third and fourth of the crops grown, and that he made this contract with Rainey. It is further shown that in the early part of the year Richardson became indebted to Rainey in the sum of $16.95 for supplies and money. It is also undisputed that the defendant, Old, sold Rainey a team, and furnished him supplies, amounting in the aggregate to between $150 and $200, to enable him to cultivate the rented premises, and that Old took as security a mortgage on the crop of Richardson and the stock sold. During the latter part of August or the first of September, after the crops were grown, but before harvesting began, Richardson announced his purpose of moving to the state of Louisiana, and had a settlement with Rainey, which resulted in the admission by Richardson of a debt due Rainey of $16.95. The evidence shows that before leaving the state Richardson entered into a contract with one Tom Collins, whereby he engaged the latter to gather the cotton crop at the customary price for such work and to turn the cotton over to the defendant, Old. Rainey objected to Collins' going on the premises and taking possession of the crop, but he and Old subsequently agreed upon one Edgar Graham as the party who should take charge of the crop and gather it. According to the testimony offered by Old, when Richardson left he was notified of that fact by Rainey, who suggested that he (Old) take charge of the crop. This is disputed by Rainey. They both agree, however, that Graham was subsequently agreed upon as the proper party to gather the cotton, that Graham did gather a part of the first bale, and Rainey and his family a part. According to the testimony offered by Old, Rainey was hired to pick the cotton. This is also disputed by Rainey. But it is undisputed that Old paid Graham for his services in gathering the crop, and tendered payment to Rainey. Old says he employed Rainey to haul the bale of cotton to the gin. It was carried to the gin by Rainey the next day after this conversation took place. At Rainey's instance the cotton was branded "Rainey & Richardson." Upon learning that fact, Old objected, and an altercation took place between him and Rainey, resulting in some bad feeling. The next day Rainey, without the knowledge or consent of Old, carried the cotton to market and sold it and deposited the money in the manner set out in his pleading. Upon learning that Rainey had sold the cotton, Old consulted the assistant county attorney, with the view of prosecuting Rainey for disposing of mortgaged property. He was informed that such a prosecution would not lie; that the facts did not show that offense. The assistant county attorney informed Old that if Rainey was guilty of anything, it was theft. Old testifies that the attorney advised him to make a complaint to that effect. The attorney denied having given any such advice. After the complaint had been made, Rainey was arrested in a formal way, and after the cause remained upon the docket two or three weeks, an examination was held and he was discharged. That ended the prosecution.

After a preliminary statement and definitions, the court gave as a part of his instructions to the jury the following:

"(7) You are further charged as the law applicable to this case that before the plaintiff can recover, the burden is upon him to show, by a preponderance of the evidence, that there was not a probable cause for the making of the said complaint by the defendant charging the plaintiff with theft, and without probable cause the said defendant, W. M. Old, was actuated by malice, with intent to injure the plaintiff, Hugh Rainey, when he made said complaint against him, charging him with the theft of the cotton, and prosecuted him therefor, if he did so.

"(8) In this connection you are further charged that malice cannot be inferred from the fact that a complaint was made by the said W. M. Old against the said Rainey, nor can the want of probable cause be inferred from the discharge of the plaintiff, Hugh Rainey, on the charge of theft, because both the want of probable cause and malice, as above...