Roberts v. King, 8781.

• Decision Date: 13 April 1932
• Docket Number: No. 8781.,8781.
• Citation: 49 S.W.2d 991
• Parties: ROBERTS et al. v. KING.
• Court: Texas Court of Appeals

49 S.W.2d 991

ROBERTS et al. v. KING.

No. 8781.

Court of Civil Appeals of Texas. San Antonio.

April 13, 1932.

Rehearing Denied May 25, 1932.

Appeal from Jim Wells County Court; R. R. Mullen, Judge.

Action by J. T. King against John H. Roberts and others. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Templeton, Brooks, Napier & Brown, Schlesinger & Schlesinger, and Lionel Goodstein, all of San Antonio, for appellants.

Lloyd & Lloyd, of Alice, for appellee.

FLY, C. J.

This is a suit for damages, instituted by appellee against John H. Roberts, a constable, J. T. Wright, his deputy, and his bondsmen, arising out of false imprisonment. Damages in the sum of $591 were assessed.

The court in this case began his charge in the shape of special issues and then launched out in a general charge, which practically destroyed the special issues and amounted to an effort to obtain a general verdict. The charge was as follows:

"Special Issue No. I. Find and answer from a preponderance of the evidence whether J. T. King requested defendant Wright to allow him to make bond on the occasion in question.

"Special Issue No. II. Find and answer from a preponderance of the evidence whether J. T. King requested defendant Wright to allow him to consult an attorney on the occasion in question.

"Special Issue No. III. Find and answer from a preponderance of the evidence whether defendant Wright, without the consent of J. T. King and over his protest, detained the said J. T. King and carried him to Corpus Christi.

"In connection with the following special issue you are instructed that if, at the time in question, the defendant Wright refused the plaintiff, J. T. King, an opportunity to make bond; or did not carry the said J. T. King before a Magistrate; or did not allow the said J. T. King an opportunity to consult an attorney, but, over the protest and without the consent of the said J. T. King, carried him to Corpus Christi the said defendant Wright would be guilty of falsely imprisoning King, even though the defendant, J. T. Wright, had a warrant for the arrest of J. T. King, for which defendants, J. H. Roberts and J. T. Wright, would be liable for such actual damages for any humiliation, embarrassment, mental and physical suffering, if any, that King may have sustained by reason thereof.

"Special Issue No. IV. Find and answer, from a preponderance of the evidence, what amount, if any, will reasonably compensate the plaintiff, J. T. King, for any humiliation, embarrassment, mental and physical suffering, if any, that he may have sustained on the occasion, in question by such acts, if any, of the said J. T. Wright.

"Special Issue No. V. Find and answer, from a preponderance of the evidence, whether, on the occasion in question, the defendant Wright by such a show of force, words or actions, if any, more than was necessary, indicated and evidenced any ill feeling or malice toward the said J. T. King.

"If you have found that the defendant Wright acted with ill feeling or malice towards the said J. T. King on the occasion in question, then in addition to any actual damages you may assess, you will be warranted in awarding to plaintiff such further sum as exemplary or punitive damages, that is, damages in the nature of a penalty, for such unauthorized manner, if you have so found, in which the defendant Wright acted towards the said J. T. King while he was in the custody of said Wright.

"Special Issue No. VI. What amount, if any, do you assess as exemplary or punitive damages?"

It is apparent that the charge is a flagrant violation of the law and the decisions, against the intermingling of the submission of special issues and general charges, and, while it is regrettable that a judgment based on such facts as are contained in this record should be reversed on what might be deemed a technicality, but which in fact involves due execution of the law in an orderly and correct manner, it must be done. Mixed charges are condemned by all our appellate courts as not tending to lucidity or to the attainment of correct verdicts. Solo Serve Co. v. Howell (Tex. Civ. App.) 35 S.W.(2d) 474, and numerous authorities cited therein.

In theory, at least, the jury is not supposed to know the ultimate result of their answers to special issues, and it is necessarily inappropriate and prejudicial to indicate the result of answers to questions propounded. The charge was fully excepted to by the appellants, and such exceptions have been duly presented to this court, and must be sustained.

It was the duty of the officer to permit appellee to give an appearance bond, and a failure to do so constituted unlawful imprisonment, for which the officer could be held liable in damages.

The fourth special issue was multifarious, and it should have been separated in different questions presenting the several issues.

Because appellee had not attended court on the "very grave" charge of driving an automobile on the wrong side of the road at 2 o'clock in the morning—and was arrested by the vigilant officer, who obtained his livelihood from fees growing out of fines accompanying the offense of driving on the left instead of the right side of a road—he was rendered such a criminal, in the eyes of the arresting officer, that bail should be denied him in defiance of the law. This case utters an eloquent protest against allowing officers fees in criminal cases which depend on the conviction of the accused.

On another trial appellee should be compelled to state the elements of the damages he has sustained and not to swear to a conclusion that he had been damaged in a lump sum.

The judgment is reversed, and the cause remanded.

COBBS, J.

I dissent from the majority opinion for the following reasons:

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