Sutor v. Wood

• Decision Date: 04 March 1890
• Parties: SUTOR <I>v.</I> WOOD.
• Court: Texas Supreme Court

13 S.W. 321

SUTOR

v. WOOD.

Supreme Court of Texas.

March 4, 1890.

Appeal from district court, Harris county; JAMES MASTERSON, Judge.

Action by George W. Wood against John R. Sutor. Plaintiff obtained judgment. Defendant appeals. The seventh assignment of error is as follows: "The court erred in refusing to give special charge No. 3, asked by the defendant, as follows: `The court instructed you that you have a right to inquire what was the understanding of each party in regard to what the plaintiff was authorized by the defendant to do in regard to any letters, and whether or not there was any misunderstanding between them in regard thereto, and to weigh and consider all the facts in this connection, upon the questions of motive and probable cause, and what was the motive of the defendant in making the affidavit, as charged in plaintiff's petition, if you find he did so make it.'"

Chas. E. Dwyer, for appellant. Hutcheson, Carrington & Sears, for appellee.

GAINES, J.

This suit was brought by appellee against appellant to recover damages for a malicious prosecution. This is the second appeal. The opinion on the former appeal is reported in 70 Tex. 343, 8 S. W. Rep. 51. It appears from the evidence that Wood was a constable of Harris county, and had Sutor under arrest to answer a complaint made against him in a justice's court. Wood testified that he placed Sutor under the guard of one Dixon. Sutor wrote to Houston to his wife, to have a bail-bond executed, and, as Wood testified, authorized him, when it came to the post-office, to take it out and open it. Wood did take from the post-office a letter containing a bond, and the bond not being properly executed, and another having been sent for, opened a second. When his trial came on, Sutor was convicted, and was adjudged to pay the cost. The evidence in the present case tended to show that Sutor was dissatisfied with the costs charged by Wood in the criminal case. He caused Wood to be proceeded against for extortion, and also made before a United States commissioner an affidavit charging him with "opening a letter addressed to the affiant, with design to pry into the business or secrets of affiant, against the laws of the United States governing postal matters." Upon this affidavit the district attorney of the United States for the eastern district of Texas filed an information against Wood in the circuit court of the United States at Galveston, and caused him to be arrested, and he came before that court for trial. Having been tried before that court, and acquitted, he brought this suit to recover of Sutor damages for maliciously prosecuting the criminal action against him.

Upon the trial appellee was permitted, over appellant's objection, to offer testimony to show that appellant had authorized him to open the letters. The ground of the objection was that there was no allegation in the plaintiff's pleading to authorize the introduction of the evidence. The objection was not well taken. A party is required to plead only the issuable facts which constitute his cause of action, and is not required to plead the evidence by which such facts are to be established. The issuable facts in this case were that the defendant had caused a prosecution against the plaintiffs; that the action was at an end; that there was no probable cause for the prosecution; that it was instigated by malice; and that the plaintiff had been damaged thereby. Griffin v. Chubb, 7 Tex. 603. The want of probable cause and malice were issuable facts, and not mere conclusions of law; and plaintiff was not required to go beyond the averment of these facts, and to allege the evidence by which he expected to establish them. In the case cited it is said: "It is incumbent on the plaintiff * * * to allege the want of probable cause and malice. The denial of these averments puts in issue * * * the facts. It further devolves on the plaintiff to prove the truth of his averments. And when the issue has been thus formed, and the proofs adduced by the plaintiff which conduce to establish the issue on his side, no reason is perceived why the defendant may not maintain his side of the issue by the proof of any facts which go to rebut or repel the evidence introduced by the plaintiff, without specially pleading them." This extract shows the principle that facts which are merely evidence of the material facts in issue need not be pleaded. In order to show malice and the want of probable cause, the plaintiff had the right, under his pleading, to prove that the defendant authorized him to open the letter he was charged with having unlawfully opened.

It is also complained that the court erred in admitting in evidence the certified copy of the affidavit of defendant, in which he charged plaintiff with having unlawfully opened his letters. The grounds of objection to the evidence are substantially stated in the assignment of error as follows: "For the reason that the said C. M. Dart, clerk as aforesaid, only certified that it is a correct copy of affidavit of John R. Sutor attached to information filed in cause No. 163, on the criminal docket of said court, entitled The United States v. Geo. Wood; does not certify that the affidavit was made by John R. Sutor; does not certify that said affidavit was ever filed in the said United States circuit court, or that it was or is a legal record of said court; because said affidavit does show by the indorsements thereon that it was filed in and was a record of another court, to-wit, the court of the United States commissioner, having jurisdiction to act upon it; and because the laws of the United States give the commissioner no authority to transmit the affidavit to the United States circuit court, but made it his duty to act thereon; and because, not being a legal record of the United States circuit court, the certificate of the clerk of said court gave no probative effect to said affidavit."

None of the grounds of objection are tenable. The certificate of the clerk does show that the affidavit is that...