*1 this must purchased “Burglary, be reversed. The case will not Robbery” by it reason coverage, Theft and because remanded of the error trial prohibitively expensive. refusing This would court in admit burglary tend to indicate that was not one of waiver after the execution the non- However, agreement. then waiver risks insured. this policy would serve to read out of the clear is reversed remanded. * * * by language “damage caused burglars” is a risk which is This covered.
argument it not weakened since does
appear “Burglary, from the record that
Theft and Robbery” coverage includes dam-
age by to the building caused burglars.
Damage building by an insured caused burglar obviously is a affording risk less ELLIS, Appellant, R. K. exposure coverage than of all loss caused by Burglary, Theft Robbery. A court liberty not at agreement to revise an ASSOCIATION, SINTON SAVINGS while professing to construe it. General Appellee. Indemnity
American
Pepper,
Co. v.
No. 505.
was caused In injury physical
loss was caused wilful insured, building language
to the policy. It was caused burglars. physical injury
After this to the wilful
building, burglars off carried the elec apparatus;
trical injury but the covered policy completed before copper wiring
theft and the trans “ * * read, policy formers. The does * * * damage to the building(s)
by burglars in gaining entry exit.” by”
Nor does it read loss “occasioned burglary. “incident to” a paragraph
1, the coverage policy under the is extend ed to “damage to building(s)”, while * * * restriction limited to “loss: ” * * * by burglary By reason of policy
endorsement the covers all of the
loss sustained as the result of
wilful physical injury to the insured build inflicted burglar burglars
on the question. occasion in
Since there is no evidence that filing loss,
waived the proof of a sworn *2 Brock,
House, Mercer, Frank- House & Antonio, Houser, appellant. lin D. Burnett, Joseph, Burnett & William Burnett, Sinton, OPINION SHARPE, Justice. original opinion herein with- following is
drawn and the substituted therefor.
This is a claiming be- brought by appellant damages presi- had allegedly caused him Duke who was then the Kenneth W. Ap- tó Association. indicted several dent criminal cases sum- grand pellant opposed appellee's motion for jury of San mary judgment Texas. four counter-af- trial court rendered fidavits, at- one him three made take from nothing or the appellee, torneys represented him appeal which this been has bonding company above-mentioned taken. *3 civil with either the nection The criminal cases arose out of the to. referred cases heretofore and hereafter of appellant connection Ellis with appellee Association, Sinton Savings he which necessary a for ma The elements organizer was an president for a period 1) The prosecution licious action are: the indictments having been re- of a criminal commencement turned after appellant’s cessation of as- plaintiff, has been caused 2) which sociation Appellant was defendant’s the defendant or tried on one of the indictments (cause terminated cooperation, 3) aid or number 3100) jury and a hung resulted. plaintiff; 4) plaintiff favor He retried in was the same case ac- innocent; prob 5) there was quitted. original While the indictments that it proceeding; 6) able cause for such were pending, appellee civil suit malice; and resulted 7) done with Christi, S. Corpus U. District Court at Mercan damage Yianitsas v. plaintiff. Texas, against Westchester Fire Insurance Dallas, S.W.2d Bank at 410 tile National Co., fidelity which had issued a bond cover- 1967, Dallas, 848, n. (Tex.Civ.App., 850 ing appellant, seeking $467,622.- to recover Power & h.); Flowers Central w. generally 85. The civil was based Co., Light (Tex.Civ. 375 314 S.W.2d upon allegations that appellant had en- Waco, e.). n. r. App., wr. ref. gaged of dishonest or fraudu- appellee, lent while re- acts connected with alleged these Appellant’s petition sulting appellee for losses to elements of a cause action essential bonding civil company The said was liable. However, ap prosecution. under suit was filed criminal case before the first plicable summary judgment we must rules tried, was still after the second as a hold that record here establishes trial thereof, subsequently and was settled matter law for an amount the record. disclosed second, third of fact at least as to issue Thereafter, the remaining criminal indict- noted) exception hereafter (with one ments on were dismissed and fifth of above-mentioned motion of the attorney. district A civil action. cause of elements was also filed appellee in a state district Proce Rules Civil 166-A, Texas Rule court and is pending. However, still appel- dure; Reserve Co. v. American Ins. Great lant has damages withdrawn claim Co., Plumbing Supply 391 S. Antonio based filing of the civil suits. Gulf, Colorado (Tex.Sup.1965); 41W.2d McBride, Railway 159 Co. v. & Fe Santa Appellant’s single point of error reads In Mc (1958). 492 trial granting follows: “The erred in Court Bride, part as Supreme held in Court Appellee’s Summary Motion for Judgment follows: reason that a fact issue was created by Appellant’s Counter Affidavits.” summary judgment “When a motion for affidavits,
Appellee’s supported by depositions, motion for sup- stipulations had attached to it various exhibits and extrinsic evidence other facts, porting judgment summary evidence includ- sufficient establish face to Flinn, which, trial, the affidavit District en- proven H. at the would John verdict, District, Attorney the 36th title the movant to instructed Judicial My am a name is Flinn and I opposing evi- must opponent show Sinton, resident of San Patricio raise dentiary data which will am of fact, years age, Texas. I am over justify must a material as to mind, have appropriate sound been convicted do seek never inability to so and per- Rule crime and have offense (f) of under subdivision relief *” ** knowledge every here- sonal statement 322 S.W.2d 166-A fully competent testify made and am applicable stated in McBride The rule the matters stated herein. summary judgment evidence here. The and practicing its motion I am a licensed support of offered fa- Attorney I was conclusively right at law. elected District established absence summary of the 36th District of Texas in vorable Judicial opposing year appellant of have been re-elected production Attorney legally continually suf- District from that judgment evidence *4 fact year of to the raise an or issues time. to ficient two, numbers concerning essential elements During the time that I have been District discussed) exception to be (with three Attorney there have been seven action. of of and five actions District of Courts will discussed These elements be County, Texas, Patricio one mentioned. order Ellis, K. formerly president R. who was Savings Sinton, of Sinton Association of THE PROSE- WHETHER CRIMINAL Texas, was Each these defendant. of BY AP- CUTIONS WERE CAUSED styled cases was “The of Texas State APPEL- PELLEE OR THROUGH Ellis,” vs. R. K. each was on the docket OR LEE’S AID COOPORATION of the District Court of the 36th Judicial prose- agreed that It is certain criminal District and for County, San Patricio indictments, cutions, by way grand jury Texas, and the seven num- cases were and es- appellant, were instituted 3079, 3080, bered 3081, 3097, No. sential element 1 is established and respectively, on the docket However, as element favor. to that Court. 2, appellant contends that the sum- investigation prosecution of mary judgment record does not establish by me performed each the cases gen- as a matter of law that there was no well Attorney and I am District uine issue of fact as to crimi- whether the acquainted all circum- facts and with nal were caused the cases stances involved each aid or or One of their from their commencement support filed by appellee affidavits termination. for summary its motion judgment was Flinn, Attorney that of H. District John during Each of the cases was commenced Texas, for the 36th District of Judicial Jury of San the session of Grand reading as follows: Texas, February, Court, said District at term of THE STATE TEXAS } investigation time I initiated an SAN COUNTY OF PATRICIO J president acts of R. K. into Ellis as ME, Savings of- authority, No undersigned BEFORE Sinton Association. director, ficer, Notary County agent employee Public in and for said or State, day appeared Savings requested personally on Sinton Association director, Flinn, officer, investigation. known to me be a No who, employee Savings As- person having agent credible after been or Sinton duly sworn, deposed voluntarily first me stated and sociation furnished informa- follows, initiate oath as tion me which me to to-wit: investigation. complaint against Savings No of Sinton suggested Association officer, by any any
R. K. Ellis was filed di- brought be cases trial. rector, agent employee During or of Sinton the time the cases were director, officer, Savings agent employee Association. No information any Savings requested R. of Sinton Association K. of- ficer, director, any agent employee brought trial. cases officer, Sinton Savings Association. No trials held in num- Two were the case director, agent employee of Sinton docket bered 3100 Court. Savings Association communicated to me officer, director, agent employee No in any any manner accusation that R. K. Savings of Sinton Association voluntari- any Ellis had committed crime. No of- information, ly any furnished me with ficer, director, agent employee my preparation evidence or assistance in Savings Sinton suggested Association officer, director, the trials. No me that R. K. Ellis charged should he agent employee of Sinton investigation crime. The voluntarily appeared Association independent investigation of to give either trial In order evidence. Jury myself. Grand to obtain information and evidence During my prep- Sinton investigation course of the trials, aration voluntarily information was went Kenneth furnished Duke, officer, in- director, requested president, me agent or employee of formation and and it was Association. *5 request. only my I furnished to me after information which obtained and presented to obtain from grand before the order witnesses Sinton jury was ob- Savings testi- my appear tained Association to and through own efforts and trials, subpoenaed through fy at I of its subpoenas I those which had issued. officers, directors, agents employees and After consideration of pre- the evidence testimony I give I felt could me, by sented before it Jury the Grand wanted. returned seven indictments R. K. nor they Ellis and Neither the the- were filed commencement and docketed any caused tinuation of of the cases was court as the cases I have men- Association, offi- by Savings tioned above. Sinton cers, directors, agents employees, or or During the time the pending, cases were cooperation the aid or of Sinton officer, director, no agent employee or officers, Association, direc- Savings Sinton Savings suggested Association tors, agents employees. or any that kept cases be pending. I the of- During have herein mentioned the time When pending, the cases were ficers, officer, directors, director, agents employees no and agent employee Association, those Savings Savings of Sinton requested Sinton Association Webb, any designations Ken- that include H. kept H. cases be pending. Roots, Duke, Owen, neth L. During the W. Leo W.’ time the pending, cases were Burnett, Grant, officer, Mayo, H. H. A. director, C. Don agent employee no Sunderman, Foote, Wan- Kenneth Frank Savings Sinton suggested Association Bohne, Havalik, C. da Walter of them should not be dismissed. J. J. Raineri, Audrey Ferguson, Thomas C. During pending, the time cases were Waitz, McKenzie, Freedson, Ralph Bruce officer, director, agent employee Burnett, R. Joseph, L. Susan Wm. G. requested Sinton Koliba, Creg- Mary Ann Henry, Shirley of them not be dismissed. han, Sanders, Sigrid Berry, Joyce Edith During the time the cases were Thurmond, Gregor- Smith, Evelyn officer, director, Betty agent employee Jasso, fact as essential element No. Z. Maria Aigner, Linda cyke, Gulf, Conwell, order defeat motion. Golden, Y. Edna Lee Clifford Railway Mc- who Colorado & Santa Fe Co. v. Johnson, Gamez, Andy and Janie Bride, he of- Appellant contends that supra. the of- all are informed have been fered opposing such directors, employees agents and ficers, evidence, agree we the af- but cannot Savings Association Sinton by him contain sufficient as fidavits relied on investigation my commencement testimony probative admissible date. with force until the mentioned above raise as the issue to whether commence- Flinn (s) ment of its aid to before me and sworn Subscribed Septem- day of this the 24th H. Flinn John ber, 1968, my certify witness The counter-affidavits relied on hand and of office. seal own, appellant, in those addition his are Fayola (s) Romike Houser, Groce, of attorneys Franklin Josh Public, Notary represented Onion. Groce James County, Texas company bonding in the aforementioned FAYOLA ROMIKE represent federal court civil Houser suit. Sinton, Notary Public, appellant ed both the civil San Patricio Texas represented cases. Onion Appellant’s criminal cases. brief states Duke, The affidavit of Kenneth W. position concerning the counter-affidavits had been connected with Sinton position “The him follows: Association since October and had Groce, Flinn affiants before Houser president been of it since March set Onion is inconsistent his affidavit. officers, directors, out all names of This a fact creates affidavits issue. agents employees As- Groce, hearsay Houser are Onion February 1, Septem- sociation from 1964 to Appellee they im but are admissible as 6, 1968, ber the date of the affidavit. *6 peachment Appel- against upon Flinn which n The affidavit of Flinn along John solely rely.” lee’s agree do not with We summary with the other judgment evidence appellant’s position. stated A ex critical by appellee on relied as a established mat- relied amination of the counter-affidavits ter of law that is- was no they on appellant reflects that were sue of fact ele- the essential raise genuine sufficient to issues of materi appellant’s ment of case that al fact as to whether the commencement prosecutions by appellee were any criminal caus was its aid or The affida- coopera ed its aid or vit H. Flinn the contains kind This is true the tendered tion. because factual evidence which courts have re- our respect evidence in such was either hear sustaining summary lied in judgments not, say opinions conclusions did cases. See David- form, the admissible contradict son v. First Andrews, State Bank of material statements fact contained Paso, 1958, (Tex.Civ.App., El S.W.2d 678 Davis, of Flinn. Crain v. affidavit See h.). n. w. set The affidavit of Mr. Duke 53, (Tex.Sup.1967.). persons out the names of the who conceiv- by ap- aby relied on could The counter-affidavits have acted for the pellant that after In the tend to establish nection with the criminal cases. May summary trial of cause number 3100 face of these affidavits and other second counsel it district advised judgment attorney devolved on the thereupon to all appellant summary going for that he dismiss produce opposing to Ellis Ellis; on against that the cases judgment evidence to raise an criminal sufficient did, fact, promote ation judge instigate same date district also advised my indictment, attorney counsel for Ellis that the district but I do know judge up told the that I had that all the cases when did not come with more against dismissed; money put would Ellis be that over into Sinton As- period counsel sociation I was I for contacted indicted. received attorney telephone district continued peo- to re- several calls from various dismissed, ple iterate representing wanting that cases be would the Association they money but actually put deposit were not more dismissed until be on November the Association. I was unable When do this I was indicted. appellant op- affidavit of Ellis in position for motion The Sinton Association threaten- contains statements ed me to have indicted. indicted. relating negotiations Also, settlement of attorney, their Joseph, Robert appellant’s bonding civil case the presence of Kenneth Duke later ad- company dismissal of indict- they mitted that controlled the indict- appellant, ments tend to show they permit ments that would not that delay- dismissal the indictments was their they dismissal until received settled, and, ed until the civil case was ac- settlement from the Westchester Fire In- appellant, attorney cording appel- Company surance which had a on Bond lee in effect that the indict- stated me. After the settlement was arrived ments (which attorney the district the indictments were dismissed.” theretofore stated would dismissed) be were The content of affidavit must used as a lever to secure a settlement be- considered the entire context of the tween the bonding company and reflects Appellant’s affidavit also contained the following Appellant circumstances. following statements: previously filed this case for malicious prosecution against appellee as cause num- “I would like to state that further 13,865 ber on the docket of the District 14, 1964, February I attended a meeting Court of Texas. Dur- in Houston where there were of- several case, pendency previous ap- ficers or stockholders pellee propounded an interroga- present. Also was an T.R.C.P., tory under Rule as follows: the name Mr. Freedson. explained
At “2. contend act or meeting you it Do acts to me proximately efficiently causing having prob- the Association was commencement continuation of lems with a block of loans were in *7 cases, any, specified you your if up the have Association and that I came unless money interrogatory answer to put with some was to Sinton Sav- by through ings they, caused defendant or group Association that the or aid cooperation? you If acting for answer the af- Sinton Associa- tion, firmative, specify: (a) description then would have me indicted some act, of each the name of the of- attempt (b) I to to such offense. offered director, someone, ficer, get employee by agent, the taken or of de- loans over but act, performed (c) of fendant the the basis their threats to have me who the criminally performed, (d) place date the act was the having indicted and been told the by performed, (e) the act was the name of Freedson, Mr. of other persons gone prison, person persons present cases where or when the had gave act performed, (f) the Sinton the act $44,450.00 by by of or a writing, which is the ex- sisted was evidenced evidenced writing hibits of the and the way attached hereto. I have no of substance person persons having of the knowing whether Associ- name or cooperation. or affi- thereof, through act con- its aid The (g) if the possession conversation, testimony davit of Ellis is insufficient the substance sisted reasons: It respect such several the conversation.” force; lacks probative either inadmissible or interrogatory by a Appellant answered hearsay, statements are conclusions testimony dis- pleading setting forth sworn opinions; they primarily relate to the the matters any knowledge as to claiming (more were indictments which dismissed inquired of as follows: fully hereafter with reference to discussed essential if some 3). element number Even (a) Causing “2. the indictment in the Ellis affidavit were statements ELLIS, and the in- continuing K.R. appel- establish that admissible tend to ELLIS, bring- dictments R. K. and the delay lee influenced in dismissal of the in- actions, ing causing civil actions, ultimately influenced their dis- dictments or is not (b) of civil It bringing Settled, this missal after the civil particular officer whether one known crimi- does not evidence that the constitute perform- agent of defendant and/or nal charges were discovery it acts, ed the but through its aid hoped it will be determined who au- not, in event the Ellis statements do admis- actions, bringing thorized the such form, contradict the of Flinn. sible affidavit continuing who authorized the of such Additionally, not consti- such statements do atrocities, bring- and who authorized the persons tute identity the suits their at- allegedly threatened criminal torneys. time, (c) Unable answer time, they were (d) at this Unable answer authority agents acting scope their (f) (e) Unable to answer at this legally at- so that their would be conduct We know of know writings, (g) We although the names of appellee, tributable to contents of conversations.” officers, directors, employees agents given by thus appellant answers period had during pertinent of time the interrogatory (and its sub- mentioned Duke. been disclosed the affidavit of Mr. divisions) legally sufficient were agree appellee We raise a fact issue the essential conclusively establishes appellee participated element of whether fact as to absence of a causing the commencement of the criminal whether the commencement of inquiry again present- cases. The same appellant prosecutions against was caused appellant ap- in the ed coopera- aid or appellee through its pellee’s request ap- for admissions in which tion, of2 and essential element number pellee requested appellant to admit that case is absent. previously given answers Appellant’s the interrogatories were true. THE PROSECUTIONS WHETHER response request to the latter admissions IN FAVOR OF TERMINATED inability to admitted continued PLAINTIFF element fact to the raise a issue as causing participated whether evi the commencement the criminal cases. herein, favor most again considered dence *8 the crim ably that opinion appellant, establishes are also the that We one ex (with inal cases herein involved inter aside from the above-mentioned thereto, discussed) ception be hereinafter which will appellant’s and answers rogatories negotiations after dismissed ultimately raise a were the affidavit is insufficient to Ellis of a settlement and actual concerning for genuine issue of material fact settlement by appellee civil suit filed federal court the commencement of the whether criminal Fire Insurance Westchester prosecutions was caused here 842 Ellis, Company v. ap recent case Ada Oil
Co., bonding company The for pellant (Tex.Civ.App., Dillaberry, 440 902 agreed here. It-was understood and 1969, 14th, a dism.), parties Houston wr. involved between all to that suit and prosecution proceeding in which attorneys, and his according cause of action for evidence, the court held that a that should a purposes venue was not established settlement suit appellee of that be reached plain- defendants because guarantee would resident dismissal want of satisfactorily prove did cases whch tiff not disposed had not then been of. court, speaking probable After a cause. period considerable during Barron, part which Ellis and held attorneys continued to Justice indictments, seek as dismissal follows: and after an appellee requested for attorney fully facts defendants stated the “If the indictments, district to dismiss the Attorney, a fairly to the District they were in fact dismissed the court. case, competent one in highly It is well that settled dismissal aof facts determines such such officer prosecution criminal brought about proceeds to formu constitute a crime and procurement compromise person prose necessary set papers to late the therein accused is such an not end of the motion, defend complaining cution prosecution- as will warrant an action for ants for mali are not liable in action damages prosecution. for malicious Sulli is prosecution, cious since if there O’Brien, 1106, van v. (Tex. 85 S.W.2d 1115 fault, Sebas it is not the defendants’. Civ.App., Antonio, 1935, ref.); wr. 497, Cheney, 25 supra tian v. [86 Andrews, Davidson v. First State Bank of 812, and cases S.W. A.L.R.2d 691]36 Paso, 310 S.W.2d (Tex.Civ.App., 678 El nothing which cited. This record reflects 1958, h.). n. w. the rule Under announced defendants, is and there was withheld in these cases it is established a matter of indicate that nothing which would shown law in the instant there was no appellee defendants believed to be not termination of.the cases dismissed in favor guilty charged. the criminal offense of appellant, and element No. 3 essential to process using 'the While of criminal a malicious lacking. is also private purposes, such as the coercion payment of a debt the com when establishes that as to criminal party plaining the accused is knows not case No. 3100 the termination was ul- crime, may guilty of show malice timately in favor of appellant, and what cause, probable want of on the motive has been the remainder of part of the informant get back his own the cases ap- which were dismissed not property necessarily improper plicable proceeding. to that As to case No. one under the law prosecu of malicious 3100 our decision will rest on holding tion. It is not improper if it coexists the record establishes as a matter with an honest belief that a crime has law that there is no genuine issue of fact been committed prob there exists at least on the elements above-mentioned able prosecution. cause 5, numbers are ato 42b, p. Malicious Prosecution § C.J.S. cause of action malicious prosecution. 1006; 9; 974, 28; p. p. note note Torts, Prosser, (3rd Ed.), pp. Law of OF LACK PROBABLE CAUSE 860; Lopez, S.W. Grissom dismd.; 37 (Tex.Civ.App.), writ The summary judgment record in this Tex.Jur. usually impossible p. 2d It Sec. case also establishes as a matter of law money to recover separate the desire that there is issue of fact as to wrongfully the accuser taken from whether probable there was a lack of has been that a crime an honest belief part agents find committed. We such connection. *9 843 summary on a motion for In action support proposition record supported is judgment know where motion by defendants, were filed charges their face to es affidavits sufficient on Dillaberry had committed ing that at trial proven tablish crime, purpose collect facts solely for the the movant to instructed would entitle ing a debt.” verdict, should be judgment sought summary judgment evidence Even if the Gulf, Fe Santa Colorado & rendered. genuine raise a herein was sufficient McBride, 322 Railway v. 159 Co. fact as whether the issue of Glass, Soren (1958); Usher v. S.W.2d by appellee or prosecutions were caused Co., 409 son Insurance McDavid & cooperation (contrary its aid Christi, 1966, (Tex.Civ.App. Corpus — aas holding), that establishes our record e.). ref. r.n. is- matter of that there law probable reviewing the In sue of fact lack of a mat- proof, it as establishes any participation believe genuine issue of pro- ter of law that there is no all of the criminal connection with ele- essential the rules least one of the against appellant. Under fact to at ceedings Rule ele- cause of action. reasoning in Dillaberry stated and the ments 166-A, T.R.C.P.; Motors v. General prose- to a malicious Gibbs ment No. essential (Tex.Sup. lacking. 450 S.W.2d Corporation, cution suit also 1970). holdings concern view our rehearing be over- should The motion ap ing three of the elements of ruled. pellant’s cause of action for malicious prosecution, further discussion deemed
unnecessary. proceeded
If this case had trial on the
merits, judge would have been trial pre-
compelled on the basis Appellant, Henry TUBB, here direct a or render verdict sented judgment in The trial favor properly granted motion court al., et OIL COMPANY CARTER-GRAGG summary judgment. Appellees. judgment of the trial is af- court No. 474. firmed. Texas, Appeals of Court Civil Tyler. ON MOTION FOR REHEARING
May 21, 1970. NYE, (concurring). Justice July Rehearings Denied Appellant’s ques- motion raises various summary quality tions relative Among appellant’s
judgment evidence. argument opin-
contentions that the affi-
ions and conclusions contained not have
davits of certain witnesses do treated
probative weight, and that we have motion for appellant to
general requiring the demurrer its cause
establish all of the elements of
action, probable the element of even when
cause was not issue.