Rust v. Page

• Decision Date: 02 July 1932
• Docket Number: No. 12710.,12710.
• Citation: 52 S.W.2d 937
• Parties: RUST v. PAGE et al.
• Court: Texas Court of Appeals

Page 937

52 S.W.2d 937

RUST v. PAGE et al.

No. 12710.

Court of Civil Appeals of Texas. Fort Worth.

July 2, 1932.

Rehearing Denied September 24, 1932.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Action by Frankie Mae Page and husband against E. A. Rust and another. From a judgment against named defendant only, he appeals.

Affirmed.

Marvin H. Brown & Son, of Fort Worth, for appellant.

Simpson, Brewster & Rogers, of Fort Worth, for appellees.

DUNKLIN, J.

On September 4, 1930, J. G. Page and his wife, Mrs. Frankie Mae Page, executed to the Automobile Finance Company their promissory note in the sum of $380, payable in monthly installments of $38 each. That note was given for the purchase money of an automobile and at the same time a chattel mortgage was given to secure its payment. The Automobile Finance Company was a partnership, composed of E. A. Rust and W. P. Sheppard. Default in payment of some of the installments having been made, criminal proceedings were instituted in the county court at law No. 1 against Mrs. Frankie Page and J. G. Page by filing therein an "affidavit for Information," in the name and by the authority of the state of Texas, signed and sworn to by E. A. Rust, one of the members of the partnership firm of the Automobile Finance Company, alleged to be the owner and holder of the mortgage. That affidavit contained a recitation of the execution of the mortgage referred to above to secure the purchase price of the machine. The affidavit further alleged that while the mortgage remained unsatisfied J. G. and Mrs. Frankie Mae Page "unlawfully and wilfully upon demand of said mortgagee, failed and refused to notify the said mortgagee, who was then and there the holder of such mortgage, of the location of such automobile, against the peace and dignity of the State."

A second count in the affidavit contained the same recitals with respect to the execution of the chattel mortgage to secure the purchase price of the automobile, and concluded with the charge that J. G. and Mrs. Frankie Page did "while such mortgage remained unsatisfied, unlawfully and wilfully conceal the said automobile, against the peace and dignity of the State."

A third count in the affidavit contained the same allegations with respect to the execution of the chattel mortgage to secure the purchase price of the automobile and charged that while such mortgage remained unsatisfied the said J. G. and Mrs. Frankie Page "unlawfully and wilfully absented themselves from the county and did otherwise conceal themselves so that notice could not be given them, or either of them, against the peace and dignity of the State."

By article 1557, Rev. Criminal Statutes 1925 (Penal Code), as amended by the Forty-First Legislature, shown in the Acts of that Legislature, page 237, c. 102, § 1 (Vernon's Ann. P. C. art. 1557), each of the acts charged in that affidavit against J. G. and Mrs. Frankie Page is made a penal offense against the laws of the state, punishable by fine of not less than $10 nor more than $100, or by confinement in jail for not more than 60 days, or both.

The record does not show that any information was filed in behalf of the state by the district or county attorney, based upon that affidavit and charging Mr. and Mrs. Page with the penal offense prescribed in article 1557, except the recital thereof in the order of court dismissing that case; nor does the record show the issuance of any warrant for arrest of either J. G. and Mrs. Frankie Page as provided for in articles 413 to 415 of the Code of Criminal Procedure. But the record does show the following judgment rendered in the county court at law in which the affidavit had been filed:

"State of Texas v. Mrs. Frankie Page. No. 11281.

"In the County Court at Law No. 1, Tarrant County, Texas.

"On this, the 13th day of April, 1931, came on to be heard the above entitled and numbered cause, and a severance having been granted, the State and the defendant, Mrs. Frankie Page, announced ready for trial, selected a jury, and the defendant, Mrs. Frankie Page, pleaded not guilty. After the defendant had entered her plea, it appeared to the court from the testimony of the complaining witness, E. A. Rust, that the information and complaints are not supported by proper affidavit and that the affidavit was in blank and filled in later and should be quashed.

"It is therefore, ordered, adjudged and decreed by the court that the information and complaint be and the same is hereby quashed and the case against the defendant, Mrs. Frankie Page is finally dismissed."

After that judgment was rendered, Mrs. Frankie Page, joined by her husband, J. G. Page, instituted the suit now before us against E. A. Rust and W. P. Sheppard to recover damages for malicious prosecution of Mrs. Frankie Page. The petition sets out the execution of the note and chattel mortgage referred to above; the filing of the affidavit by defendant E. A. Rust and the disposition of the case so made against Mrs. Frankie Page; with further allegations that Mrs. Page was not guilty of the offenses charged against her, and that the defendant E. A. Rust knew she was innocent of those offenses, and that he filed the complaint with malice and without probable cause. Damages were claimed by Mrs. Frankie Page for alleged injury to her reputation, for mental suffering resulting from the humiliation by reason of those criminal proceedings, and also for injuries to her health. The amount claimed by plaintiff was $30,000 for actual damages and $20,000 for exemplary damages.

Defendant W. P. Sheppard filed a plea in abatement of the suit as to him, and also a general demurrer and a general denial.

Defendant E. A. Rust filed an answer, consisting of a general demurrer and a general denial. The general demurrer so alleged by him was overruled; and the case went to trial before a jury, who returned a verdict in answer to special issues as follows:

"1. Do you find from a preponderance of the evidence in this case that the complaint in question was filed by the defendant E. A. Rust upon the advice of the assistant District Attorney, Mr. McGregor, after the said Rust had made a full and fair statement of the facts shown to the said E. A. Rust at that time?

"Answer: No.

"2. If you have answered special issue No. 1 above `yes,' then you need not answer this question, but if you have answered the same `no,' then you will answer this question:

"Question: Do you find from a preponderance of the evidence that the defendant E. A. Rust acted without `probable cause,' as that term is defined for you below, in filing the complaint in question in this case?

"By the term `probable cause' as used above is meant the existence of such facts and circumstances as would excite the belief in a person of a reasonable mind, acting on the facts or circumstances within his knowledge, that the person charged by him was guilty of the charge with which she was charged.

"Answer: Yes.

"3. If you have answered special issue No. 1 `yes,' then you need not answer this question, but if you have answered the same `no,' then answer this question:

"Question: Do you find from a preponderance of the evidence that the defendant E. A. Rust acted with malice, as that term is defined for you below, in filing the complaint in question?

"By the term `malice' as used above is not necessarily meant personal ill will, but a wrongful act, knowingly and intentionally done, without reasonable cause.

"Answer: Yes.

"4. Question: Do you find from a preponderance of the evidence that there existed between the defendant E. A. Rust and the defendant Sheppard an agreement between themselves to carry on the business of the Automobile Finance Company with a view of sharing as between themselves in the profits, if any, in said business?

"Answer: Yes.

"5. Question: Do you find from a preponderance of the evidence that the defendant E. A. Rust has abandoned any intention on his part of further prosecuting the criminal case against the plaintiff, Mrs. Page?

"Answer: Yes.

"6. Question: Do you find and believe from the evidence that the plaintiff, Mrs. Page, sustained any actual damage by reason of having been named in the complaint which was filed against her?

"Answer: Yes.

"7. If you answer special issue No. 6 `no', then you need not answer this question, but if you have answered the same `yes,' then answer:

"Question: How much damages, if any, do you find and believe from the evidence that the plaintiff, Mrs. Page, has suffered as a direct and proximate result of having been named in the complaint which was filed against her?

"In answering this question, the court instructs you that you may allow the plaintiff, Mrs. Page, such a sum of money, if any, as if paid now in cash, you find and believe from the evidence will reasonably and fairly compensate her for any mental anguish, if any, or humiliation, if any, or impairment of reputation, if any, or impairment of health, if any.

"Answer: $10,000.00.

"8. If you have answered special issue No. 6 `no' then you need not answer this question, but if you have answered the same `yes,' then answer this question:

"Question: Do you find and believe from a preponderance of the evidence that any amount of exemplary damages should be assessed against the defendant in this case?

"As an aid or guide to you in answering the above question, the court instructs you that exemplary damages are damages which may be allowed by the jury where a party has acted with malice, if any.

"Answer: Yes.

"9. If you have answered No. 8 `no', then you need not answer this question, but if `yes', then answer:

"Question: What amount of exemplary damages, if any, do you find should be assessed against the defendant in this case?

"Answer: $5,000.00."

Judgment was rendered in favor of the plaintiffs against the defendants E. A. Rust and W. P. Sheppard jointly and severally for the sum of $15,000; but later and upon a hearing of...