*1
y.
Tes.)
957
(256 3.W.)
<&wkеy;3
prosecution
giving
Malicious
3.
false
up.
to secure
intended
—One
is
has set
The rule
prosecution.
just,
held
evidence
to have caused
right,
and it should
and is
a valuable
practicable application.
voluntarily,
a
reasonable
direction
under the
One
accomplish in
rea-
a
officer, giving
as to
superior
To construe
a
law
officers of the
object,
practical
an ad-
manner its
prosecution
sonable and
mission
must
admits
false
on which a
for
very language
rule
transporting intoxicating
instituted,
made in the
that the defendant
mean
procured
be construed to
caused or
dictment
arrest and
defendant’s
every
petition
alleged
in the
charge,
pre-
such
did not
necessary
estаblish
person.
it is
for the
fer it in
recover;
him to
first
instance
enable
<&wkey;7l
prosecution
(I)—Scope
4.
Malicious
allegations
petition
in the
but does not admit
agent
authority
prosecution
procuring
held
alleged
merely deny
in the
matter
new
Which
jury.
for
answer,
proof
the burden of
of which
*
one, taking whisky
* *
plain- Whether
from another
admitting
the defendant.
agent
party,
a third
acted within the
as
scope
for
action, ‘except in
far as it
tiff’s Gause
authority
causing
of his
answer,’
arrest and
be defeated
person
indictment of the
ky
liquor
from whom the
allega-
whis-
etc.,
purport
admit the
he does not
transporting intoxicating
obtained for
merely
petition,
to admit that
tions
jury.
another
helé
state
for the
prima
and ex-
a
.fаcie
pressly
fact inconsistent
admit
declines to
<&wkey;26
prosecution
5. Malicious
neces-
—Malice
alleged in his answer.”
matter
with the new
sary.
necessary
Malice
ais
element of malicious
cause,
Appellees,
their
admission in
prosecution.
not be
as could
de
admitted
special answer,
<&wkey;7l
prosecution
their
feated under
said 6. Malicious
—Issue
willfully acting
deprive
right malice raised
evidence of
them of their
admission did
testimony.
on- false
testimony
prove
said defens
to introduce
willfully
agent
Evidence
defendant’s
Rawlings
Ediger,
163;
es.
v.
231 W.
S.
testimony
prosecution on
instituted the
false
(Tex.
Wilkes
Life
Co.
Federal
v.
Civ.
Ins.
issue,
helé
raise
sufficient to
and sustain
Logan
;
(Tex.
App.)
W.
Meade v.
218 S.
591
jury’s finding, of
malice.
188;
App.)
Smith
Traders’
S. W.
v.
110
Civ.
222;
Bank,
<&wkey;!5
W.
12
National
Tex.
S.
prosecution
prob-
7. Malicious
of—Want
Rawleigh
(Tex.
necessary.
Newby
able
Civ.
W. T.
Co.
v.
1173;
App.)
Whisenant
Shores-
malicious,
S. W.
To make a
there
1175;
App.)
must
(Tex.
cause.
S. W.
Civ.
Mueller Co.
Payne
Beaumont
S.
<&wkey;
18(4)—
8. Malicious
Prosecu-
94.W.
instituted
carefully
all of the
considered
We have
private
One
from another’s
by appellant
assignments
presented
of error
falsely swearing
stock and
his
that he took
fromit
herein,
held)
of them
not think
do
not to have acted on
error,
therefore over-
instituting
reversible
and we
show
for trans-
state,
assignments
porting
affirm the
it from
another
even if he had
rule all of said
probable cause to
believe
defendant had
'the trial
court.
grip.
<&wkey;5'/2,New,
Key-No.
6,A
Railroads
9.
vol.
Se-
Agent suable
ries-Federal
for malicious
Agent,
DAVIS,
TEAGUE.
Federal
prosecution.
(No. 955.)
prosecution, being
An
action for
(Court
law,
purely compensatory
Appeals
in which
an action
damages,
Beaumont.
of Texas.
of Civil
penalty
punish-
12, 1923.)
May 4,
Rehearing
as distinct from
Dec.
1923. On
recoverable, may
ment, are
be maintained
<&wkey;332(2)Scope au-
and servant
1. Master
Agent
—
the federal
rail-
making
agent
thority
assault held
of carrier’s
roads,
Act,
(U.
of Federal
in view
Control
10§
jury.
for
Comp.
Comp.
Supp.
S.
St.
U. S.
St. Ann.
agent,
3115%j),
gives
assault
carrier’s
In an action for
§
a cause of action
1919.
against
to sustain
sufficient
there was evidence
where
federal control
carriers under
wherever
agent
compensatory
findings
permits
damages.
within the
the law
authority
representing
scope
defend-
<&wkey;67Damages
Malicious
re-
10.
—
time,
not err
ant
court did
coverable.
fusing
for
verdict
defendant.
direct
maliciously prosecuted
One
entitled
Appeal
<&wkey;>1062(1)—
and error
Submission
compensation
past
for
and future
damages
exemplary
of count
versible error.
held not re-
injuries
feelings, name,
time,
to his
loss
expenditures
reputation,
defense,
plaintiff,
pros-
in a suit for malicious
Where
of his arrest and
result
the direct
ecution,
entered
remittitur
the lower court
&wkey;>54(3)Impeachingevidence can-
11. Trial
—
exemplary
a sum awarded on a
count
determining
other
considered
not be
issues.
that,
damages,
helé
this was
admissible,
Impeaching
sep-
cоunt submitted on
from the
distinct
considered,
determining
is-
arately
counts,
other
cannot
other
reversible
jury.
committed
it.
sues
Digests
Key-Numbered
topic
Indexes
in all
cases see
and KEY-NUMBER
<§=s>For
*2
256 SOUTHWESTERN
&wkey;>1008(1)—
<&wkey;2l6(I)
not >29.
and error
Court’s con-
Appeal
error
in
<2. Appeal and
—Error
binding
impeaching
limiting
clusion
considered
on issue not submitted to
evidence
not
omission
called
not
to his attention.
exception
request
spe-
in absence of
charge.
cial
The court’s conclusion
an issue not sub-
on
charge
limiting impeaching
binding
parties
on the
in
not
mitted to the
as
as
Error
jury’s
supported
compe-
verdict,
purpose
offered is
for which
to the
evidence
judg-
except
shown,
evidence,
not
sustain
did
tent
ment if the
tention
quested.
his
not
the
where
sufficient
spe-
ground
charge
nor
was not called to
at-
on such
omission
his
questions
charge,
limiting
embodying
not re-
cial
the evidence.
were
thus
(cid:127)<
<&wkey;974(l)
issue
13.
and error
Appeal
Special—
<&wkey;263(3)—
21.
and error
Failure
Appeal
charge
weight
not
on
held
reviewable
as
issues held
to submission
not
except
special
evidence.
injurious
to appellant.
special
A
issue
prosecution
In
action for malicious
based
an
alleged agent
in
whether an
behalf
for and
whisky
plain-
on false evidence that
from
tak.en
injuries
occasion of
defendant on the
private
grip,
from
tiff’s
stock was taken
his
held)
complained
charge
not reviewable as a
except
submission
defendant’s failure to
special
weight
of the evidence.
on
plaintiff’s
as to whether
had
wife
issues
whisky
garage
in
stored
his
the time of
<&wkey;350(3)
re-
held properly
14. Trial
—Issue
whisky
pro-
taking, whether such
was that
embodying only
fused as
facts.
evidentiary
'by
taker,
and whether
cured
prosecution, de-
In an action for malicious
whisky
procured
any
not
grip,
did
his
requested
rep-
as
fendant’s
issue
to whether a
setting up
appeal
preclude
from
department
agents
justice
resentative
quested
charge
probable
court’s failure
want
him in
defendant’s
assist
cause;
questions being evidentiary
such
col-
prehending plaintiff, and whether
acted for
only.
lateral issues
held)
only,
properly
purpose
refused as
only evidentiary
embodying
facts.
&wkey;»20
22.
prosecution
Malicious
—Reasonable
guilt
belief
of accused defense.
(14)
as-
as to
<&wkey;l21
Testimony
Evidence
15.
—
that would
Facts
create
mind
held admissible.
wife
reasonably prudent
on plaintiff’s
sault
man a belief
another’s
for assault
defendant’s
In an action
guilt
offense would constitute a defense
plaintiff’s
testimony
agent,
as to an assault on
against
charge
of malicious
admissible;
at the same time
both
held
wife
&wkey;>263(3)
being parts
23.
transaction
Appeal!
Appellant
assaults
and so
—
raising
intimately
held not
from
issue
therewith
precluded
omitted
connected
charge
from
court’s
failure
could not
of the two.
except.
witness
Defendant,
prose-
for malicious
an action
Assignments presenting
&wkey;>l04
cution based on false
16. Courts
evidence
tak-
—
plaintiff’s private
not be
novel
need
discussed.
en from
stock was taken
questions
held)
setting
grip,
not foreclosed from
from his
Assignments
presenting
of error
no novel
appeal,
up, on
the court’s omission to
questions
discussed.
need not be
cause, by
probable
except,
want of
failure
,
Rehearing.
ques-
On
submission
where
he
^of
clearly
undisputed
tion,
&wkey;>56
prosecution
Malicious
must
17.
—Plaintiff
any whisky,
grip contained
whether the
want of
cause.
show
embody
not
all
did
the essential
sdch issue
ele-
an action for malicious
In
probable cause.
ments of
.
plaintiff to show want
is on
burden
(8)—
<&wkey;350 Undisputed
24. Trial
need
be made
issue submitted.
part
<&wkey;356(3)
Trial
from which
18.
—Fact
Undisputed facts
need
be
made
cause follows
want of probable
issue
should
jury.
submitted
an issue
submitted.
Though
direct submission of the issue of
<&wkey;350
Trial
held im-
Special
25.
—
in an
action for mali-
objection
as
refused
properly
improper
prosecution
cious
em-
ultimate
issues.
not embody
conclusion,
bodying
legal
issues,
prosecution
an action for malicious
bas-
law,
issue follows as a
matter of
whisky plaintiff
on false
ed
submitted.
should be
transported
having
charged with
from another
grip,
taken
state was
defendant’s re-
&wkey;>l8(2)
19. Malicious
quested
—Want
whether the
as to
contained
cause held
shown
by facts found. plaintiff placed it in his automo-
when
improp-
plaintiff’s
ga-
it from the train held
after
That
wife
bile
her
objection
erly
instigating plaintiff’s
refused,
rage,
which one
embody
transporting
liq-
intoxicating
ultimate issues
did not
to wheth-
instigating
had,
party
procured some,
or the
of еr
uor
none
had,
transported
procured
charged,
believed he
tion
his
any suggestion
establish want of
absence
not to
procured
prosecution;
tending
that he could have
it in
the evidence
for the
show
grip
to the record
that there was other
state or
belief
transported
instigator
that the
it was
another
state;
finding
person
that the
this.
insti-
Digests Key-Numbered
Indexes
topic
other cases see same
and KEY-NUMBER
dSu=>For
Reynolds;
upon
recovery
sulting
maliciously
to
stigated by appellant’s
lant.
fered
committed
olds,
same
App.)
the wife
Reynolds
part,
pellee.
which defendant’s
plaintiff’s
placed
where
issue.
al
Davis,
tiff,
together
was entitled to submission of all
rison &
objection that an
ty; Ewing Boyd,
state, defendant’s
thе train
issues raised
tained
taken
sented
charge
show that
gating
ment
prosecution
therein,
state,
submit
Tex.)
signment
held not
submit issue held
WALKER,
Woods,
Appeal
Action
Baker,
injuries resulting
officer
Error
Trial
Appeal
scope
also her
and reversed
him
that he took
from
do;
facts
by
an
it in
by
whisky,
Federal
an
from malicious
or that
with
agent
Watson,
held'
herein.
as
by Henry
her because
procured
Botts,
action
an
of this
grip
<&wkey;350
objectionable
King
contention
of their
defendant
of error and
defendant’s
S. W.
(á)
upon her
transporting liquor from another
his automobile after
was
and
failing
assignment
three
by
improperly
argument thereon,
J.
caused,
for
husband,
of the Director
contained
show
plaintiff procured
Payne
District
the evidence.
Agent.
for
based,
&
Parker &
as to
Director General authorized
(3) Requested
affirmative
agent falsely represented was
This case
290,
special
all
appellee
Judge.
compensatory damages
John,
in an
Henry
and had been
exemplary
sufficiently
to submit
grounds:
—
and remanded in
Teague
employment.
assaulted
proposition
appeals.
agent,
as
&wkey;s742(6)
whether the
which was a
proposition
testified
agents, acting
of error in
refused,
Judgment
Court,
any whisky
Henry Teague,
Houston,
action for malicious contended
transporting
purely
Teague
Garwood
from the
for
against James C.
wrongful
an
the assault
Houston,
grew
there
David
on whose
presented by
cause..
(1)
damages
sufficiently pre-
about,
General.
as to whether
that defendant
Mrs.
damages
assault
Harris
as
*3
evidentiary.
Affirmed
the material
For
meeting
—Failure
was
thereunder,
thereunder.
ratified
agent,
out
refusing
These
(Tex.
for
based
for
and Gar-
McReyn- transporting
when he
part.
Teague,
suit
of want
another possession
person-
for
whisky,
assault
alleged
within
appel-
plain-
based
Coun-
state-
made
from
con-
Civ. his version
Mc-
suf-
Mc-
dif-
(256 3.W.)
the
his ment made
the his
as-
re- his
by
y.
a
the two
found he took
peal
special agency
pellee,
owned
furnished
ney
rage
circumstances
lant’s
mission under
McReynolds then,
mediately
with
bottles of
United
superior officer, Johnson,
being
facts,
Johnson then
Then,
from
of the
quitted.
tendent,
office.
Johnson,
unlawfully transporting intoxicating
Teague
them on their
the
appellant,
Teague,
grip;
session of
fusing
Sjtates district
lant
have with him in a small
Teague
information that
certain
Louisiana
ry
ferent
ed
answers
It
[1]
McReynolds,
the service of the
him home.
by appellant,
appears
car,
effect
authority,
home
instituted
box
We
Louisiana to
McPhail,
without
able to
but
general
facts of
Department
elements
for
whisky. Upon
who
States, and
McReynolds,
day
which his
left his
had stored
and after
showed
sustain
here
instruct
identical
whisky to
by McReynolds,
adjoining
that he took
some
some
of how he came
appellee’s garage,
time
would
on'special
intoxicating liquor, against ap-
explained
office
appellee,
do
following
called one
jury
us in
office whеre the
under
and was
car
make reference
McReynolds,
McReynolds
department,
personally
attorney,
quarts
acting
engine,
David
this
so,
time.
Henry Teague,
further discussion
he committed
whisky
wife
a verdict
riding
assault and
arrested,
was entered for
renewed the assault. At
found that he took it out
Attorney
bring
Houston, Tex.,
recovery
the
occupied by
some
Payne
court did
assaulted Mr. and Mrs.
to" his
findings
Justice, holding
Director
at that
the information
McReynolds
within
their version of the
box
issues,
his
him
office of the United
representing
to their home
McPhail,
into Houston
hand
whisky,
the district attor-
out of
which he would
put
carried the two
driven
attempted
superintendent’s
superior
which was
direction of
tried,
General
come to
into
for
Teague, suрra,
of the
gave
time,
General,
the
agent
grip.
was
an
which Mrs.
unlawfully
possession
up
err
favor:
which
and
appellee’s
an
grip into
company
scope
appellee.
and ac-
got
engineer
superin-
this
in that
assault.
advanc
but
secured
carried
agency
to
officer,
a com-
taken.
appel
to
appel-
in re
When
state
agent
from
their
with
was.
thus
him
pos-
was
car-
im-
the.
ga-
ap
get
t<y
a
Digests
Key-Numbered
topic
cases see
Indexes
and KEV-NUMBBRin
256 SOUTHWESTERN
any, as a direct and
and
name,
find he
arrest ing,
rest
sustained
tion,
ments and no
and
ice,
tained from the 15th
to
direct and
will answer:
swer:
son and
according
this
defined
sate
facts to
Johnson,
within
agents
swered:
mittitur of the
‘yes,’
‘yes’
As this was a
prejudiced
Johnson,
аbout,
cating
tions,
state of
eration
way
ible error was
proposition
submitted to
submitted
distinctly
such assaults.”
General at
then the
“(d)
“If
“(a)
“(b)
“(c)
“If
“Special
“Special
“If
The
money, paid
this
Railways?
you may
future,
as
indictment of the
taking
and
question
On
the. submission
you
and
or
you
‘yes,’
-Such loss
answered
and
or
and
the term
The loss of
Such
Special
procuring,
authority,
Such sums
will
date,
issue of
McReynolds,
by
L. Ed.
he.”
“Yes.”)
or
‘no,’ according
prosecution.
Texas? You
procure,
as
Director General
his count
because of such
or either
have answered the
if
motion to
issue
you?
proximate
have answered the
issue No.
reputation
if
employees
into
the
scope
prosecution.
probably
and in
the time the
it.
you
and from оther cause.
either of
Ault,
that
illegally
from the state of Louisiana to the
iújuries,
announced
find the facts to be.”
any,
others:
Special
the
issue No.
You will
(To
jury
No.
consideration
may
‘malice’
You will answer
It does
as
the other
committed
now,
event
or
jury by
answered:
malicious
$125
the
256 U. S.
indicated:
you
this
16: Were
time,
bringing
money,
time,
representing
of
or either of
15:
find
his or their
and
a direct
issue No. 18: What sum
result of said arrest and
plaintiff,
proximate
of
transporting
them,
day May,
that he
enter
of such
injuries,
arrest and
if
will
will
only,
answered:
the
awarded
may
them,
rights
this
question
has
17:
as
event
reasonably
exemplary
in Missouri
any,
Did
if
assaults were
the
if
arrest
*4
and distinct
reasonably
would be
counts,
in so
judgment, on
answer this issue
you
been
find has been
any,
prosecution
then
by
result of said ar-
any,
issue
foregoing special Company,
about said arrest
Were
“Yes.”)
Director
within
appear
actuated
McReynolds
any,
McReynolds
following ques-
separately and
foregoing
cause or
to his
if
only,
result of said
entered a
them,
the court
may
following
‘yes’
indictment
and
the
doing,
‘yes’
authority
sustained,
issues.
he has sus-
hereinbefore
any,
to be.”
you
A. D.
said intoxi-
“Yes.”)
could
no
said.
sustain in
then
liable for
damages.
you
(To
jury
you may within
in what
Director
compen-
find the
Sup.
will an- ble
General
or
feeling,
consid
revers
Pacific
acting
John- one of the
made, sulting
count
caus-
scope
bring
mal- and
was
‘no,’
‘no,’
this-
ele-
you Pennsylvania
(To
and
has
and
an-
Ct.
re-
as
pf
if ky,
with the
on this false evidence
its
without
We think
ing.
pеrsons
support
Am.
things
corporation
bezzled, stolen,
pellee’s possession
ville, etc.,
sault
sented
and then either
tuted shall in
that
stituted,
can
egation
evidence to
rection
Railway
76;
dence the
whose duties include the
to 26 Am. St.
under
following
of the law
criminals to
075.”)
of a
v. Groseclose
hibited,
of
otherwise
the evidence.
find
the issues submitted under
amount,
should have
one
defend
“Perhaps majority
“That one
“You
The
(To
[3] Without a further statement
the
Exp.
property
that when this
reply
Penn Co. v.
companies
finding,
Rep.
may
prosecution,
and in
manufactured,
The
does not
that he took it
the facts of
rule
from such
or
probable cause,
exhibition
will
who have committed crimes
jury found, and
Co.
Co.
then
103;
delegation
be hеld as the
duty
prejudiced;
3 El. & E.
has been made
R. R. Co. v.
consequences
we think it
counter
caused
any,
charged
above
preferred
must be held
may
justice,
v.
answer this
is thus
scope
Co.
has been
authority
issue No.
Rep.
persons
Goff Great
Quigley,
imply
facjts
Patterson,
Issue No. 15 has its
evidence.
or
Weddle,
you
superior
voluntarily
be held liable as the
officers
said indictment
answer to issue No. 16
it is not
to be
arrest
took the
consequence
given,
prosecuting criminals, and
of
destroyed,
proposition:
Weddle,
special agents
event act
132:
with the
corporation
evidence which
and
find.”
and
that an
possession
sustain the
the
announced
is started.”
and while it
this case
McKee,
compelled
who
liable to attend the del-
21
exhibited,
authority
Davis v. Teague
256 S.W. 957
Tex. App.1923Check TreatmentAI-generated responses must be verified and are not legal advice.