Reed v. Lindley

• Decision Date: 11 March 1922
• Docket Number: (No. 9775.)
• Citation: 240 S.W. 348
• Parties: REED v. LINDLEY.
• Court: Texas Court of Appeals

240 S.W. 348

REED v. LINDLEY.

(No. 9775.)

Court of Civil Appeals of Texas. Fort Worth.

March 11, 1922.

Appeal from District Court, Montague County; C. R. Pearman, Judge.

Action by Tom Lindley against W. L. Reed. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. O. Davis, of Gainesville, and Donald & Donald, of Bowie, for appellant.

Alcorn & Jameson, of Montague, and Homer B. Latham, of Bowie, for appellee.

CONNER, C. J.

During the night of April 21, 1920, a residence and barn owned by the appellant, Reed, were destroyed by fire. On the next day, April 22, 1920, appellant filed a complaint before Henry M. Burns, justice of the peace for precinct No. 7 of Montague county, charging appellee, Tom Lindley, with the burning. A warrant was issued upon the complaint, under which Lindley was arrested in Foard county and brought to Montague county, and at an examining trial had upon said charge on April 27, 1920, Lindley was discharged, and has not since been indicted. Lindley brought this suit against W. L. Reed in the district court of Montague county for malicious prosecution and slander, seeking to recover actual and exemplary damages. At a trial had on the 3d day of February, 1921, Lindley recovered judgment for $800 actual damages, and this appeal is from that judgment.

The evidence, briefly stated, in substance furnishes but little, if any, reason to doubt that the fire was incendiary in its origin. It further appears that on the 17th day of March preceding the fire Lindley, who had theretofore married Gertrude Reed, daughter of appellant, W. L. Reed, deserted her and their two children without cause. Prior to 1920 Lindley and family lived on farms belonging to Mr. Reed, but at the time he abandoned his wife and children he was living on a rented place in Montague county not belonging to Reed. Will Benson, one of the witnesses for the defendant, testified that Lindley said that the reason for his moving down there was that the "old man" (Reed) had promised them a place, and he had moved to the rented place for "aggravation." After said abandonment, and prior to the fire, appellee's wife, Gertrude, procured a divorce from appellee on the ground of having been falsely accused by her husband of a want of marital fidelity, and she testified on the trial that before appellee had abandoned his family he frequently expressed animosity against her father, and made threats of serious injury against him, and that these threats had been communicated to her father after the abandonment, but before the fire. Mrs. Lindley testified that at the time appellee abandoned her and their two infant children, aged two and three years, respectively, he carried with him his clothes, including two pair of work shoes; that the right heel of his work shoe was run down, and would show in his tracks.

Appellee in his accusation of his wife's infidelity named no person, nor does it appear that he made any answer to her suit for divorce.

On April 14, 1920, Lindley, at Foard City, Foard county, wrote and mailed the following letter addressed to "Master J. B. Lindley, Star Route, Montague, Texas, c/o Reed":

                                     "Foard City, Texas, 4-14-20
                  "Little J. B. Lindley — Dear, Dear Little Fellow
                Papa is now fixing to take a hike some
                place across the other side. I hope you will
                some day grow to be a man. Always live single
                Papa has studied over the way your mother
                has gone until he is almost crazy. Now, son
                my dear little boy, papa hates to leave you to
                battle in the world, though papa is a man of
                virtue. Papa loved mama until she went wrong
                Papa still loves you, and papa will die that way.
                Now, son, papa in a few days will take this
                hike, and then papa will cross over the river.
                Papa has just got back from Wichita. Grandma
                don't know what I am here for and never
                will. Papa will have revenge if it takes half of
                Montague and Belcher. Papa is fixed now for
                a big Bear for the edges of hell. Good-bye,
                son.                                Papa.
                

"Papa hears about you every day or so."

The testimony indicates that the appellant was unable to read writing, and that the letter was delivered to him and thereafter read to him by Mrs. Reed, his wife. The little boy to whom the letter was addressed was unable to read or write. The letter caused much uneasiness in the mind of Mr. Reed, and he went to the county attorney and tried to have Lindley put under a peace bond, but he was informed this could not be done. While on the stand Lindley admitted that he wrote and mailed the above letter, and directed it to Reed because he did not know where little J. B. was; that he did not know whether little J. B. could read or write. He denied that in writing the letter he desired to scare old man Reed, testifying that he did not have in mind Reed when he said he would have revenge if it took half of Montague and Belcher, but that he was going to have revenge on another party, but he did not name such other party; that he did not remember what river he was going to cross, but it was not Red river; that he had not been to Wichita Falls and did not know why he put that in the letter.

Mrs. Ruby Reed, appellant's widowed daughter-in-law, testified that she passed through Nocona on the 18th of April, 1920, together with two of her cousins and two of her children; that as she passed through Nocona she saw Tom Lindley sitting on some trucks at the depot, and that she so informed appellant, Reed, on the following Monday, before the fire. Upon being informed of the fire, appellant called up the sheriff, and told him that he believed that appellee, Lindley, was the person who burned his house and barn, and requested the sheriff to come over at once so that they might catch him. The sheriff, however, did not go until about 10 or 11 o'clock the next morning. Appellant then went to Nocona and saw the constable or city marshal, and endeavored to get that officer to take the train going in the direction of Wichita Falls and Foard City to see if Lindley was on it, but the officer said he did not know Lindley, and suggested that appellant himself take the train. He did go, and, together with the conductor and one of the trainmen, went through the train and inspected all parts in the effort to discover Lindley, as he expected he would do, but in which he failed. Appellant then returned to his home, and upon further investigation found tracks made by a No. 5 or 6 size shoe, the size worn by appellee, with a run-down heel, going toward and returning from the burned house and barn.

One R. B. Price also testified to the effect that after the fire he had occasion to go, and did go, to Foard City, where he met appellee, and that in a conversation there had appellee stated that:

"I knew it (the house) was going to be burned * * * but I didn't burn it. He said they identified the shoe tracks. That he left his shoes there, and that the man who burned the house wore them."

Appellee, by a number of witnesses living at Foard City, seemed to establish with reasonable certainty that he was in Foard City during the day preceding, and during the night of the fire, and on the following morning, and hence that he could not have been at the scene of the fire, and, further that appellant had been so informed before the service of the warrant of arrest, but notwithstanding that appellant insisted upon its execution. He also introduced a number of witnesses who testified to the effect that they knew his reputation while living in Montague county, and that it was good as a peaceable, law-abiding citizen. Such other parts of the testimony as are deemed material will be stated in connection with the topics discussed.

The court charged the jury that before they could find for the plaintiff he must show by a preponderance of the evidence: First, that the defendant, Reed, in instituting the prosecution against the plaintiff in the justice court, "was instigated by malice, and that he acted in said matter without probable cause for believing the plaintiff, Tom Lindley, guilty of the charge preferred against him;" second, "that the alleged charge of arson made by defendant against plaintiff was not true;" third, "that the plaintiff has been damaged by reason of said prosecution."

Probable cause and malice were defined, and the court, in the eighth paragraph of his charge, gave the following instruction, to which error is assigned in this court, to wit:

"It is immaterial in this case whether the plaintiff was guilty or innocent of the charge of arson. If you believe plaintiff innocent of the crime, but believe that defendant had reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of the offense, then you will find for the defendant."

Error is also assigned to the refusal of the court to give a special instruction to the effect that, if the jury believed from the evidence that the plaintiff, Lindley sought to be prosecuted in order to have a pretext for a damage suit, and that in furtherance thereof he wrote threatening letters and made threats against the defendant, and did other things thereby intending to engender in defendant's mind the belief that he (plaintiff) had burned the defendant's house and barn, that then they should find for defendant.

A majority, consisting of Justices DUNKLIN and BUCK, are of the opinion that the special charge mentioned above should have been given, it being their view that the evidence raised the issue, and that, under the rule announced in the McGlamory and other familiar cases following it, appellan...