Hale v. Barnes
155 S.W. 358
Tex. App.
1913
Check Treatment
KEY, O. J.

(after stating the facts as above). Appellant’s brief contains four assignments of error, and these complain of the action of the trial court in giving the defendant’s requested instructions Nos. 2 and 3, and challenge the verdict of the jury in so far as it awarded to the defendant exemplary damages, and also charges that the amount awarded is excessive. The proof shows that appellant, Hale, was a merchant, and that appellee, Barnes, was indebted to him in the sum of $169.50 for merchandise sold to the latter during the year 1911. It also tends strongly to show that appellant entertained no ill will toward appellee; that prior to. suing out the attachment the former had been endeavoring to collect his account against the latter, and had offered to buy his cotton and allow him 25 points more than the market value thereof, in order to procure a settlement of the debt referred to; and that before suing out the attachment appellant had received information that appel-lee had mortgaged his interest in four bales of his cotton. The testimony referred to, which was not contradicted, tends strongly to show that if probable cause for suing out the attachment did not exist, nevertheless, appellant did not act maliciously in suing it out.

[1] In order for the defendant to recover on his cross-action, the burden rested upon him to show, not only that the attachment was wrongfully sued out, but that no probable cause existed for the issuance thereof, and that appellant was actuated by malice in causing it to issue.

[2] It has often been said by text-writers and judges that malice may be inferred from a want of probable cause; and, while it may be true that, in the absence of proof to the contrary, a jury may find malice as a fact where the proof shows a want of probable cause, still the facts and circumstances may show that no malice in fact existed, even in the absence of probable cause. Kaufman & Runge v. Wicks, 62 Tex. 238. So, to say the least, it is very doubtful if this verdict ought to be permitted to stand; but, as other grounds exist for reversal, we need not determine whether or not the case should be reversed solely upon the complaint against the verdict.

We sustain the first and second assignments, which complain of the action of the court in giving special charges Nos. 2 and 3 requested by the defendant. These charges, especially when taken in connection with the paragraph of the main charge hereinbefore set out, were upon the weight of the testimony, and were calculated to prejudice the rights of appellant.

[3] The first part of the paragraph of the court’s charge referred to, stating that a party who resorts to an attachment does so at Ms peril, and that no belief, however firm and sincere, that the grounds set out in his affidavit are true, etc., should ever be incorporated in a charge to a jury, while the statute which prohibits a trial judge from commenting to the jury upon the weight of the testimony remains in force. In saying this we are not unmindful of the fact that a charge in this language was approved by the former Court of Appeals in Handel v. Kramer, 1 White & W. Civ. Cas. Ct. App. § 827. But, in view of the many decisions of the Supreme Court of this state condemning such charges, that case should not be considered as authority. The provision of the statute which prohibits a trial judge from commenting to the jury upon the weight of testimony is a modification of the common law, was enacted in the early history of this state, has been the source of much confusion, and has, perhaps, produced -more reversals than any other one cause. Perhaps many of those who institute comparisons between trial judges in this state and those in England and elsewhere, where no such restrictions are placed upon the- judge, are unaware of the existence of this statute, and of the fact that, as long as it remains in force, a trial judge cannot exercise the dominant influence that such a judge exercises in England and many other places. But this law was made by the people, acting through their duly elected representatives in the Legislature, and, until that body sees proper to change it, the courts have no right to decline to enforce it.

[4] It has been construed by our Supreme Court as inhibiting the trial judge from incorporating in his charge anything that might reasonably be construed as intimating to the jury his opinion as to how the case ought to be decided, or as to the weight that should be given to any testimony, unless *361 there is no conflict in the testimony, and it clearly establishes a certain fact. Castelman v. Sherry, 42 Tex. 59; Dwyer v. Bassett, 63 Tex. 274; Mayo v. Tudor’s Heirs, 74 Tex. 471, 12 S. W. 117; Schunior v. Russell, 83 Tex. 83, 18 S. W. 484; Sparks v. Dawson, 47 Tex. 138; Heldt v. Webster, 60 Tex. 207; Lee v. Yandell, 69 Tex. 34, 6 S. W. 665; Railway Co. v. Kutac, 76 Tex. 473, 13 S. W. 327; Ry. Co. v Harriett, 80 Tex. 73, 15 S. W. 556; Hanna v. Hanna, 3 Tex. Civ. App. 51, 21 S. W. 720; Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963.

Concerning most that is contained in the special charges asked on behalf of appellee and complained of by appellant, and that portion of the court’s charge which we have criticised, though it is not assigned as error, we think the observations of Judge Gaines in Railway Co. v. Harriett, supra, concerning a requested instruction in that case, are pertinent: “The proposition contained in the instruction is probably sound, but it is one which would come more properly from counsel in argument than in the charge of the court.”

[5] On account of the prohibitory statute referred to, a judge has no more right to tell the jury that certain evidence does not prove a particular fact than he has to tell them that certain other evidence does prove such fact. In Wood v. Chambers, 20 Tex. 248, 70 Am. Dec. 382, such argumentative charges were condemned, but the case was not reversed because of the fact that Wood, the appellant, was the first offender, and had requested a number of special charges in effect arguing his side of the case. Thereupon counsel for Chambers asked a series of charges of a similar nature on their side of the case; and, while the court condemned many of those asked by each party, it held, in effect, that Wood was estopped from complaining of that course, because he invited it, and because each party had been treated alike in that respect.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.