Suhre v. Kott
| Decision Date | 07 March 1917 |
| Docket Number | (No. 5813.) |
| Citation | 193 S.W. 417 |
| Parties | SUHRE v. KOTT et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
Action by William Suhre against Hugo Kott and others. The cause was dismissed, and complainant appeals. Reversed and remanded.
Rebel L. Robertson, of San Antonio, and P. E. Johnson, of Stockdale, for appellant. J. L. Browne, of San Antonio, and Wiseman Bros. & Burney and J. E. Canfield, all of Floresville, for appellees.
This is an action for damages arising from a malicious prosecution in initiating lunacy proceedings against appellant. It was alleged that without probable cause therefor appellees maliciously and falsely made an affidavit that appellant was a lunatic, or non compos mentis; that it was necessary that he should be placed under restraint; that they procured his arrest and had him brought before a justice of the peace, who refused him bond and placed him in jail; that he was taken before a commission and tried for lunacy and was discharged; that appellees have continued to pursue appellant and have published and declared that he was of unsound mind. General and special demurrers were sustained, and, appellant declining to amend, the cause was dismissed.
Sustaining a general demurrer to a petition is fundamental error, if error at all, and must be considered even in the absence of any assignment of error.
We are of opinion that it is actionable to falsely and maliciously file an affidavit that a person is insane or a lunatic, and the party making such affidavit could not excuse his conduct on the ground that he was authorized by the laws of Texas to make such affidavit.
Nor can it be held a justification of the affidavit that the justice of the peace exercised judicial discretion in issuing a warrant for the arrest of appellant. If that be the law, there could be no case in which damages for malicious prosecution could be recovered. The basis for the damages is the making of a false and malicious affidavit charging the party against whom it is directed with violating some law, or of being afflicted with a disease of weakness, the possession of which would damage his standing and reputation, or inflicting pain and mental anguish.
The essence of the action for malicious prosecution is causing legal process to regularly issue for the mere purpose of vexation, annoyance, or injury, and three elements are required to establish a case of malicious prosecution: First, that the suit was instituted with malice; second, that it was brought without probable cause; and, third, that the malicious action has terminated in the acquittal or discharge of the person claiming damages. Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Breneman v. West, 21 Tex. Civ App. 19, 50 S. W. 471. The three essentials mentioned are alleged in the petition.
The argument is made that the prosecution for lunacy has not terminated, for the reason that appellant was tried by a commission, which has been declared unconstitutional. Whether the proceeding was constitutional or not, appellant was discharged by the county judge and the prosecution has terminated. Whether the dismissal depended upon the proper procedure or not is not material, for it was done upon a hearing of the testimony, and appellant was fully acquitted of the charge of lunacy and discharged from custody. Porter v. Martyn, 32 S. W. 731; Rogers v. Mullins, 26 Tex. Civ. App. 250, 63 S. W. 897. It cannot be reasonably contended that appellant should insist that he was not properly discharged, but must be tried by a jury; for, if he did, then it would be contended that he was responsible for being detained and should not recover. Appellees, under the pleadings, have abandoned the prosecution, and the suit instituted by them has terminated. We have discussed the question as though it had been finally determined that the present law is...
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