*1 et al. RUST v. PAGE
No. 12710. Appeals Worth. Texas. Fort of Civil
Court July 2, 1932.
Rehearing Sept. Denied *2 Son, Worth, Brown & Marvin H. Fort appellant. Rogers, Simpson, Fort Brewster & appellees.
Worth, for DUNKLIN, J. 4, 1930, September G. and his J. On
wife, executed to Frankie Mae Company prom- their Finance Automobile 1557, except issory $3S0, payable in article the recital thereof note the sum of dismissing case; monthly the order note nor each. That $38 installments of money given purchase an au- does'the show record the issuance warrant for time a chattel arrest of either J. G. and Mrs. and at the same tomobile provided given payment. mortgage Frankie to secure its articles 413 *3 Company part- of was a of the Code Criminal Automobile Finance 415 Procedure. The composed judg- nership, following E. A. Rust and W. P. But the record does show the of county Sheppard. payment in of ment in in some rendered court at Default law made, having the installments inal ty Page been crim- which affidavit been filed: proceedings instituted coun- Page. “State of Texas v. Mrs. Frankie No. against Frankie No. 1 Mrs. court at law by filing Page therein an and J. G. County 1, “In the at Court Law No. Tar- Information,” and in the name “affidavit for by County, rant Texas. Texas, signed authority of state of this, day April, 1931, “On the 13th came Rust, B. A. one of the and sworn to members of the tomobile be the above heard entitled and num- partnership firm Au- of the cause, having bered a severance alleged and been Company, Finance to he the defendant, granted, and the State Mrs. mortgage. That owner and holder of the Page, ready trial, Frankie announced a recitation of the execu- affidavit contained jury, defendant, selected a and the Mrs. mortgage tion referred above of the Page, pleaded guilty. Frankie After the purchase price of machine. secure the pica, appeared defendant had entered her it of alleged that while The affidavit further testimony to the court from the plaining com- mortgage G. Mrs. unsatisfied J. and remained witness, Rust, E. A. infor- wilfully “unlawfully Page Frankie Mae upon and complaints supported by mation are not and mortgagee, and failed demand said proper affidavit and that the affidavit was mortgagee, notify who the said refused to was then in quashed. blank and filled later and should be of such and the holder mort- automobile, gage, of such of the location therefore, ordered, adjudged dignity “It and de- against peace and of the State.” information and creed affidavit contained A second count hereby complaint quashed the same is be and respect to the ex- recitals with the same ecution of the chattel against the case Mrs. and mortgage to secure the Page finally Frankie dismissed.” automobile, purchase price and con- judgment rendered, After that Mrs. J. G. and Mrs. cluded with the Frankie joined by Page, husband, Frankie Page, J. G. mortgage Page such re- “while instituted suit now before us unlawfully unsatisfied, wilful- mained and against Sheppard P. E. A. Rust and W. automobile, against ly said conceal the damages prosecution recover malicious peace dignity the State.” Page. petition Mrs. Frankie The sets out A affidavit contained count third and chattel the execution of the note mort- respect allegations to the ex- the ecution of the same gage above; referred to of the mortgage to chattel secure A.E. Rust affidavit dis- charged purchase price automobile and of the against position Mrs. of the ease so made mortgage remained unsatis- while such allegations Page; with further Frankie Page Mrs. Frankie G. and the said J. fied Page guilty Mrs. was not of the offenses wilfully “unlawfully absented themselves against her, charged and that county did otherwise conceal innocent of those E. A. Rust knew she was giv- could that notice not be themselves so offenses, and that he filed the them, against peace them, en or either Damages probable cause. malice and dignity State.” for al- were claimed Frankie reputation, leged injury By to her mental Rev. Statutes article Criminal suffering resulting Forty- Code), from the humiliation (Penal as amended 1925 proceedings, Legislature, reason of those shown 237, the Acts First injuries by (Vernon’s to her health. page also for The amount Legislature, Ann. C: § c. $30,000 1557), charged for actual claimed damages ages. each of the acts P. art. $20,000 exemplary dam- J. G. and Mrs. in that affidavit penal a offense is made Frankie state, punishable by fine of Sheppard of the the laws plea P. a W. filed Defendant $100, nor than more or him, $10 than not less suit as also abatement jail for not general more than 60 a-general confinement a denial. demurrer days, both. or answer, E. A. Rust filed con- Defendant general general sisting not show that demurrer and a record does infor- The alleged general demurrer so in behalf of the mation was filed the district or state denial. overruled; county attorney, upon by based him was and the case went charging who returned a ver- Mr. and Mrs. to trial before dict that affidavit special prescribed penal issues as follows: offense answer to you ‘yes,’ if then preponderance you have answered same “1. find from Do complaint answer: this case that evidence in tlie in hy E. A. filed “Question: damages, any, if much How Dis- said assistant the advice you find and from evidence McGregor, Attorney, after the Mr. trict Page, plaintiff, as has suffered fair statement full having proximate direct and result at E. A. Rust said the facts that time? shown was filed named against her? No. “Answer: answering question, in- “In this special you plaintiff, No. you you may issue “2. have answered If allow structs Mrs. you ‘yes,’ money, any, need not answer then 1 question, ‘no,’ above such a sum of if you paid the same have answered but if cash, now find and believe *4 question: you this reasonably fairly answer then will the pensate and com- evidence will any, anguish, any if her for mental preponder- “Question: you find from a Do impairment repu- humiliation, any, or if or E. that the ance of the evidence A. .defendant health, any. tation, any, impairment if if cause,’ or ‘probable as acted without Rust filing you below, $10,000.00. in is defined that term “Answer: complaint in in case? this the you special No. have “8. answered issue If question, you “By ‘probable above as used 6 ‘no’ but if need not answer this cause’ then term the ‘yes,’ you cir- of such facts and answered same then have the is the existence meant question: in a the belief answer would excite this as cumstances mind, acting on person the a reasonable “Question: you a from Do find and believe knowledge, fq.cts within his circumstances or any preponderance the evidence that charged guilty of person him was that the exemplary damages as- should be amount of charged. charge she was which the with against in the defendant case? this sessed Yes. “Answer: you answering guide an in “As aid or n special you issue have answered “3. If you question, the above that may the court instructs you ‘yes,’ this need not answer 1 then No. damages exemplary damages which are you question, same have answered the if but jury party the a be allowed where question: ‘no,’ answer this then malice, any. has acted with if you prepon- “Question: find from a Do “Answer: Yes. evidence that derance ‘no’, you “9. If answered No. have 8 then malice, term as that A. acted E. is defined for Rust you question, if need not this answer but below, you com- the ‘yes’,then answer: question? plaint in “Question: exemplary amount of What “By is ‘malice’ as used above term damages, any, you if find be as- should will, necessarily personal but a ill meant sessed defendant this case? intentionally knowingly wrongful act, and $5,000.00.” “Answer: done, cause. reasonable without n “Answer: Judgment Yes. favor rendered plaintiffs against defendants E. A. Rust you prepon- Question: Do a from “4. find Sheppard jointly severally and and P. W. existed that there be- evidence of.the derance $15,000; but later sum A. de- E. defendant tween the fendant hearing motion for new trial de- agreement Sheppard an between changed fendants, original judg- the court carry business of themselves reading ment an order as follows: Company view with a Finance Automobile profits, sharing in the between themselves court, hearing as after the’ “But any, business? in said opin- if motion for new trial was of the further judgment ion heretofore that the verdict Yes. “Answer: ' excessive in entered this cause were Question: pre- you from Do find a' “5. n sumof required a ten thousand dollars ponderance defend- evidence amount, plaintiffs. remittitur such any has abandoned intention E. A. Rust ant Page Page, having G. Frankie and J. filed prosecuting part the crim- of further on his amount, remittitur the such court is of Page? plaintiff, inal case opinion plaintiffs, Page Frankie that the “Answer: Yes. Page, G. should have and recover of and J. you Question: find from “6. Do defendant, Rust, E. A. sum the court and of of plaintiff, Page, the evidence is thousand dollars. And five damage any actual reason of sustained having opinion plaintiffs, further named Page Frankie G. should J. take against her? was filed defendant, ágainst Shep- nothing P.W. “Answer: Yes. go pard, that he should hence day ‘no’, special you and recover his costs this ex- answer issue No. 6 behalf “7. If pended. question, then answer this need not adjudged manner; ordered, and de- and the statement was made that “It is therefore plaintiffs, necessary Mrs. one of be shown that the essentials creed prosecution re- do have and civil suit Frankie and J. G. malicious Rust, defendant, plaintiff acquitted E. A. had been from the crim cover of and the sum of dollars, together charge against inal him. But deci thousand those five per apparent acquittals of six sions it is rate were re thereon at the interest cent, per date un- and after this annum from ferred criminal as evidence of termination of paid, proceedings, opinions ex- for all of which-let til sum is indi said and the . any ecution issue. terminated other manner cate meaning that would be sufficient. is evi ordered, adjudged and de- “It is further quotation following dent from from Glas plaintiffs, Mrs. the Page, creed court gow Owen, v. nothing Tex. 6 S. 531: W. G. take Frankie J. “The Sheppard, asked the to instruct P. W. day un go could not recover hence without that said prosecution less the evidence showed recover his costs.” anat end. The refusal of this judg- made of No has been assigned as error. The is not cause action Sheppard and of defendant ment favor complete prosecution until has ended. against him not be further will the suit noticed. From the fendant It could not be known whether there was judgment rendered so de- injury acquittal or not until appeal. prosecuted has *5 charge, injury the nor what the extent of the Copies by of affidavit defendant the filed might bé. The suit cannot be maintained at judgment E. and of the rendered A. Rust all if there a final maintain is conviction. To county against dismissing the court the ease action, the prosecution; it must be shown that there was a plain- Page attached to Mrs. Frankie were malicious; that that it was it petition primary tiffs’ as and as a exhibits probable cause; was without prosecution and that the by allega- plaintiffs’ suit, basis for tions followed Citing is at end.” cases. of so made and of innocence the county It that manifest the order of part the making malice on defendant the dismissing against court Mrs. Frankie the them, the criminal physical suffering case and mental Page a final plaintiffs termination of was as a those the result of sustained prosecution had proceedings, damages that been initiated were appellant complaint the E. A. Rust. A new claimed. necessary information and to a further fense, would have been assignment support In of error to the prosecution of the same overruling trial action of the the though by even it be could said that the general plain- to defendant’s demurrer county hearing order made court after petition, appellant tiffs’ following has submitted the the evidence would not have been a bar to proposition: gather, “We prosecution another on the defense of former decisions, plaintiff that a cannot a make jeopardy. following amply decisions prima prosecution case facie of malicious support Martyn this conclusion: v. against alleges (1) Porter a he unless (Tex. App.) 731, refused; Civ. 32 S. W. writ prosecuted has him for that the defendant Rogers 250, Mullins, App. v. 26 Tex. Civ. 63 51 alleged crime, (2) commission of a that he is 897; Scott, 372, S. W. Graves v. 104 Va. prosecution finally guilty, (3) not has 821, (N. S.) 927, S. E. 2 L. R. A. 113 Am. St. favor, (4) prosecu- in his terminated that the Rep. 1043, 0; Cominsky Ann. 7 Cas. 48 v. probable cause, tion was done without Breen, App. 369; Moyle Drake, Ill.7 v. 141 maliciously, (5) showing was instituted 238, 520; Robbins, Mass. 133 Y. Assur. Soc. v. 6 N. E. Robbins v. damages resulting plaintiff.” actual to 597, Equitable 977; N. N. 30 E. Life argued necessary It is that one (Tex. App.) Lester Civ. S. 110 plaintiff’s lacking, that, elements of case is 499; Dawson, Graves v. W. Am. 193 S. W. 130 Mass. 39 allegations petition, as shown in the Rep. ; (Tex. App.) 429 Suhre v. Kott Civ. acquitted has never been of the of 417. charged, with which fenses she but that was plaintiff’s peti Nor do we believe that proceedings merely upon quashed subject general tion in this case a ground de was the plaints that “the information and com murrer, allegation that there was no supported by proper not are affidavit any warrant issued for the arrest of the affidavit was blank and filled Page prior hearing by county Mrs. to the quashed,” citing in later and should be every court. familiar It rule that rea case of American Motors Finance Co. v. indulged sup intendment must be (Tex. sonable App.) S.W.(2d)274, Cleckler Civ. 28 sufficiency port petition Koehring several other decisions Von such as against general complaint Witte, App. 646, demurrer. The v. 15 Tex. Civ. 63 S. W. (writ against Page refused), Lindley (Tex. v. Mrs. was sworn and Reed Civ. App.) attorney. 240 W. In S. some of deci before the district those assistant appeared charged against Pago it sions cases Since the offense Mrs. filed disposed misdemeanor, had never been tried or was a it was attorney plaintiff Page paid duty file an After or the district had two tlie court; justice car, three in the he several thereon installments on the had information (Code arrange- looking Cr. Statutes Rev. conversations and Cr. article with Rust justice duty Proc.), meeting ments for is made the that were it installments peace delinquent; thereon to issue a warrant then East of the the pose he then left for Manifestly, pur Page. fields, taking arrest of Mrs. Texas oil automobile cover- bring defendant mortgage him, is to of a warrant ed three that he was two or but with tribunal, and as days leaving trial before before informed he against general believe the we going pur- demurrer out- of town indulged presumption that a war pose money pay should be trying to make some Page before court, note, Mrs. delinquent issued for rant was hearing installments on the Rust made county it Page the case thereto. showing plain n nottell such be held that particular part should wife to what his necessary. However, petition we kept tiff’s go. the after the the oil fields 'he intended car He necessary. We same was believe that with him in East until Texas upon incumbent it was do not believe that wife information his had been filed charged penal being Page Mrs. after and arrested and that warrant had been been after had heard that she he warrant, but arrest offenses to await also á process right such to waive that she had the During arrest. absence for his his issued jurisdiction of the herself to submit and court repeat- from home the Rust made right prejudice to claim to her demanding payment Mrs. ed visits there prosecution damages if the of the defendant charging her con- note probable cause and instituted without cealing demanding she the car and well We it malice as motive. with settled reply In tell him where it could found. toe respect by. authorities that was informed to each of those demands Rust by to show that sufficient issue was to the by just know she did not it, taken where it field. to beat her and husband proxi A. Rust E. somewhere East Texas oil prosecution *6 of the and efficient cause mate going her he was Rust then told that county against and court her trial her in the for the offenses throw her to death and husband charged in com the therein jail. Rust made her mother sister and brought having plaint. Rust Defendant repeated upon Page sell demands Mrs. to consequent prosecution with the about the purpose of furniture for her household the injuries Page probable cause Mrs. to note, being paying the the off furniture having appeared malice, and and and vsdth $3,000. at about To that end he took valued against on trial of the crim her in the testified pur- an auctioneer out home for her to the position escape case, to re inal he is no looking pose of over furniture the with ground sponsibility therefor, on the that selling view it. to by a further incur humiliation she did not awaiting night On com- the before Rust the filed under a warrant before her arrest plaint against plaintiffs again he went to the answering charg appearing in and the Page’s house, Mrs. where she alone against We believe it her. clear that es made child, again her furniture. demanded her small and complaint was the efficient the the of On visit her that he drove into proceed proximate of the criminal cause and ings driveway, and failed after she had com- to 386; Page. against 38 C. & Mrs. J. T. P. ply with his demand for rhe furniture Ry. Bigham, 90 Tex. 162. v. S. W. Co. backing car as he was his out of the drive- Appellant the court erred that insists way, begged yard Page Mrs. into went out the request overruling peremptory for a in instruction on the failed to his carry to out threat him not to his ground the jail, put and her mother sister her her sufficient make out case evi with nervous overcome shock and she was so that she fell recovery any sustain amount. dence to The introduced by faint; ground in a the to testimony shows much statement facts her, of assistance to not- he no offer made parties the on made issues raining withstanding it was then hard pleádings, ap and in filed for briefs notwithstanding wife, who was in and the car pellant discussion there is extended him, begged him Mrs. to take per in an to show that evidence emptory However, appellee effort Page house. into the given. should instruction have been pointed was filed Rust took Before the has out much tes investigator Stubbs, special ample support a Mr. timony which was to the find attorney’s office, jury out Mrs. ings liability to district on the issues any Page, knowledge when reiterated she denial and for both actual ,defendant and ex car, damages. unduly prolong emplary the whereabouts It would biggest opinion testimony to at Rust told Stubbs she this length, discuss such only seen. At time but refer liar had no we will that he ever to few out standing during to facts testified visits made to. the several “just cause,” ground Page’s use of the Mrs. she know words home did where on was, except it that law and word taken car her husband had it was a correct not statement fields, “just” to know his address. Texas oil but she instead of the word the East “probable” Upon be used. should objection changed so testimony himself of defendant “just” “reasonable,” making word to the word crim- tended inal resorted to show he to the definition read reasonable “without proceedings against Page Mrs. cause,” given and in form to it was purpose bring forcing the car to back her jury. change the was After that there was made Worth, and that from East Texas to Fort after was recovered in lect time, further no at that possession thereof it was returned it is insisted that the use of the word here appointed through a receiver “probable” “reasonable” instead of the word against col- Mr. Mrs. a suit was reversible error. mortgage, and foreclose debt Page We believe against no substantial differ Mrs. and after he testified meaning ence in sonable” county two “rea had been terms the case court and “probable,” dismissed, prosecute therefore this he decided not to assignment Speer possession Law overruled. further he had recovered since Special Texas, 568, p. 727; Testimony plain- Stan Issues § introduced the car. Grocery Co., ford v. 143 N. C. 55 S. E. trial of tiff further that on showed county several ease court there in the spectators present in addition to the Since, law, aas matter of the dismissal testimony, according to her she county court of greatly also humiliated that trial and against necessarily Mrs. Frankie thereto; by proceedings leading reason case, a termination order a nerv- had become such of all of she steps prosecute defendant to take further sleep had been unable ous wreck that she necessary her it would have him seriously impaired. had been and her health complaint, file new submission of special 5, presenting inquiry issue No. objec appellant’s merit There is pot whether the defendant had or abandoned language special issue tion No. used any prosecute intention to further the crim whether or not the as1 harmless, inal case even in defend was filed should be said that the court erred advice of the assistant district ant submitting Furthermore, finding it. attorney made a “after the Rust had said that Rust abandoned fair the facts known that full and statement of conclusively put such intention matter time”; E. A. Rust said at at rest. in 2 *7 objection urged being that defendant if the (N. S.) 928. good “in faith” a statement to Rust attorney judge the known to of the facts that were district The record shows trial that the up him, duty further devolved no reached conclusion that the remittitur the duty $10,000 by him, damages originally on it was the of the district of the allowed attorney jury so made. take the statement to sufficient all ex the was to eliminate requested allowed; damages the the defendant on The issue same in all view of cessive exactly same, point evidence we disturb was are unable to exception “good conclusion. it included words part making of Rust in faith” on assignments Numerous of error to ad- good complaint. necessarily faith was element of The testimony mission will now be discussed. language in used involved testimony The of Mrs. to the fair in full and statement No. “of issue effect that certain visits made known E. A. Rust at that to said the facts above, home, to referred to defend her Mullins, App. Rogers v. 26 Tex. Civ. time.” demanding ant that she turn over him was to 897, cited; 250, W. and decisions there 63 S. comply her furniture and if she did not with Railway Missouri, K. T. v. Grose- & Co. going he was to her that demand have App.) (Tex. W. Civ. 134 S. writ close jail, put her mother and sister admis was (Tex. refused; Bukowski v. Williams Civ. malice; objec tending sible as show to App.) S. W. 19S being irrelevant, it tion thereto was assigned plaintiff’s pleadings, has been to the defini Error without basis “malice,” given charge prejudicial the court’s tion defendant. Her further to special testimony as issue in connection No. the effect reason to wrongful knowingly meaning prosecution against in “a act her she had tentionally put without reasonable cause.” been that she done so embarrassed hated to door, first written and before her out that she had been As that its submission was head “just sick, physi certain to the the words made cal that she sustained suffering, upset of the “rea her so used words nerves were cause” instead objected her,” closing to the of a door is death to sonable cause.” Defendant that “the damages establish, province on tbe issue was admissible was the it of the de- objection plaintiff there fendant claimed over to defendant’s cross-examine the on oth- hypothetical pleading it and further er questions to warrant conditions not was covered objection questions eliciting the of the to one he fit to so. saw do ques- leading, although being answer" as plaintiff propounded Counsel 'for its as to tion reframed so eliminate was question: to defendant this “Then leading feature. you yard when she followed out the back Nor believe that we do (plaintiff) she fainted fell there testimony admitting erred her, rain and drove off and didn’t left everything that she you?” told objection question Defendant’s to that car, she the whereabouts knew of was sustained and witness did answer not question pro objection thereto that over pounded question, exception present but a bill of leading and form was call in that ed here to the refusal of the court to instruct conclusion; witness had ed since the jury question. not to consider this Mrá. already she in detail as to what testified Page had testified to the facts embodied in defendant, not be and we inquire told the question. that in that There is no reversible error improper whether or to lieve it was ruling. Complaint is made of the re not embraced all. further testi Her permit fusal to court mony that the auctioneer came and when being while cross-examined counsei furniture, her he told the defend looked at plaintiff, testify to that the assistant district right dispose to of it ant she had no attorney complaint advised him before belonged her as much husband to since as to county investigat- he-first take the her, replied that he Page’s try or to Mrs. home and to elicit from it, not was relevant to afraid take to information her as to the location the au properly the issue of malice admitted ; quali tomobile but shown the coúrt’s irrelevancy to over defendant’s any exception, fication of the bill of We reach the the case. same issue already testify permitted fully to testimony thát her further conclusion as to McGregor, all advice Mr. the assistant going her that defendant told he was gave attorney, him district before the com death if best to beat husband do his plaint filed. testimony Although that he could. assignments present Several of error brought defend cross-examination out on .plaintiff indulged contention that counsel for strictly responsive not ant’s and was counsel improper argument to the reason counsel, to yet asked defendant’s of which a reversal should follow. The rec- no error refusal of plaintiff agreed ord shows that counsel ground, since it exclude it on that might that defendant’s counsel take bills of malice, was admissible counsel issue on the exception any portion argument objected its exclu interrupting during argu- him sion that issue. Further because relevant to ment, exceptions all thereto were qualified more, judge trial bill of argument. taken after the conclusion of the exception testimony nota unduly prolong opinion It would to set tion ex that defendant did move to arguments complained length. out the of at testimony. clude the argument shown the sixteenth bill plain Dr. Brewster was witness for *8 exception was, substance, in that the de- tiff, and testified he he that examined Mrs. proce- fendant had resorted to the criminal request, proceeding along her at merely purpose collecting dure for the the du- questioning, usual routes of and found her to any public, and debt not out of sense of highly in nervous condition. be There was a ty, put and hé also resorted to that threats to overruling in no error to that jail. Mrs. and her mother in and sister testimony pleading ground on the that there was no object argument Defendant did not to the on support it, alleged to since it was ground that was outside the record and pleading plaintiff’s that as a direct result prejudicial, which is the here. prosecution of suffered severe argument anguish gener was, substance, mental Another and her completely destroyed. injury al health had been that Mrs. if the defendant had caused to testimony reputation given Page’s a Further to like effect was and made a nervous n by hypothetical her, ought in answer Brewster to wreck of then Dr. he to be made to questions, pay exemplary damages and the court overruled therefor defend as well as objection thereto, damages, alleged ground on ant’s actual to the end that he in will lay they proper predicate jerking a that the not refrain from some the future other testimony given by witness, poor filing- woman of her but with little out home and particulars pointing pred out out what her. The bill criminal cases of ex improper. argument just Furthermore, pred ception icate was to to referred was hypotheti qualified judge embodied icate so laid cal numerous the trial state with the argument objected tended was' conditions which evidence to ment not to that your I ground that want to is the record call attention was outside the to that it argument Robertson, inflammatory prejudicial highly of Mr. said to which he he defendant, had been called here a made to defend is merely duty doing man good who was his further concluded that The court here. helping argument proper citizen to enforce the law. and deduc- was a inference glad they position, I am took that be- tion evidence. cause, gentlemen all after is said argument plain counsel for In another boils, done, simply to this case down one language: nothing “There is he tiff used this can this, proposition, proposition and that is away her from now. He has taken do you good think that if woman that sits there give Nothing something back. that he cannot ought county road, you to on the then re- be quiet lips neigh can that he do can you turn a verdict for defendant. If quiet Nothing can do can bors. that he any not think has business on the that she n tongues enemies, you sayI to county road, you do not think that if she damag you get through after with the actual guilty of crime connection with this trans- ought es, you stop say him, going to to to ‘we are action, you ought then return a verdict to you sharks,’ thing with loan this kind of for her.” per cent com ten these fellows that judge qualified excep- The trial the bill per top in cent mission and on terest, of that ten argument tion to with the statement sign $300, you notes for make loan that he did not consider that the same was you say going We are $380.00. inflammatory outside the record and everybody else, file a com start to when prejudicial rights, and to defendant’s further woman, stop, stop, plaint good argument reply that counsel for the defendant. the same was specific guilty.” ob she is be sure that jection argument refer was that the to that argument plaintiffs shark” was as a “loan Another coun ence to the improper support merit in the evidence. had no sel to the effect that there was was jury swearing refer that the out the instructed the the contention The ence counsel as by plaintiff’s complaint against Page, the defendant made to the improper duty good merely trying was to do as a “loan shark” was law, disregard trying instruction to enforce with the further and was citizen since it was shown after testimony it for mention or discuss his own that announced that same and not to purpose during got And as deliberations. back he their he his car complaint. made notation to file another shown further he did not care The qualified by exception, exception judge bill judge trial to the bill opinion argu argument rest of the- that the trial in to the effect that was of the argument legitimate reply and de quoted inference of counsel was a the ment testimony in the case. for defendant. duction testimony argument proven plaintiff’s de- counsel It was both Another applications written if should and in the effect that fendant Rust n forthe loan citizen, good question, plaintiff then introduced say plaintiffs they right thing they but did the did not borrow and could prosecuted, having their note defendants $300 from the cent, per given commis- included 10 should think otherwise of Mrs. $380 granting loan also returned in her fa- then a verdict should be sion to Rust cent, exception per likewise date on the amount That bill of interest from vor. judge charg- qualified by trial state- other in addition to incidental loaned; es, including the record and on the car. ment that it was not outside cost insurance reply argument he and de- that it was in further testified that And Rust Sheppard partners, doing busi- defendant’s counsel. fendant ness “Automobile In- firm name of under the exception Another bill of was that Company,” payee in It the note. surance argument counsel for said to the of coun- that the statement clear therefore *9 there, gentlemen, jury: “Go out answer cent, charged per had defendants' sel that ‘No,’ spe and answer that first this cent, top per on of 10 interest commission request given that was at the issue of cial evidence. It is also was warranted ‘No,’and all defendant answer the rest designation ” of defendants manifest that his as persons ‘yes.’ of them meaning than had no other “loan sharks” qualified excep- judge the bill of trial The terms from a would exact such who argument with the statement that tion to the sel’s appellant counsel for borrower. Nor has summary way of a of was coun- same any suggested mean- other their briefs here ing issues, argument previous those on might parlance have in common argu- counsel for the that ment jury. imputed to those words been various issues told argument made this: answered in Another was to them should be submitted opposite way. gentlemen thing “Now, of the first permissible exception be drawn from bill showed inference to Another of made by plaintiff’s argument following not err coun evidence therefore the court objection. overruling go “Men, return a here and out sel: good this woman that will brand verdict After due consideration of the motion criminal; kind of verdict return the rehearing, other we adhere to all conclusions in this ought facts under the returned to be original opinion, embodied in our and there- ought case, to be kind verdict motion fore the is overruled. act with a man that will returned malice, cause, probable won’t attorney and the the truth district tell the everything, and when about truth whole any that, men, won’t be have done you.” your thank De I verdict. kick about it outside was fendant’s inflammatory, prejudicial. Inc., record, EXCHANGE, NATIONAL v. RADIO et al. CALHOUN qualified judge that bill trial argument 12712. that he considered No. statement from the tes- proper deduction reference and Appeals Fort of Civil of Texas. Court timony, not outside of that it was Worth. record. 25, 1932. June apparent none of it the. We arguments, exception several bills óf Rehearing Sept. 24, Denied qualifications them some of judge, reversible error. show the trial noted, assignments all reasons For the judgment af- is error are overruled firmed. Rehearing. Motion for On exception taken No. Bill of Brewster, argument Mr. to the plaintiffs, and discussed our counsel hearing, original that one opinion shows objections “such was that made thereto highly record, argument outside of rights prejudicial inflammatory to the per been not have and should opinion contains the erroneous mitted.” Our not one of the statement grounds objection, the erroneous re opinion original with herewith in our cital drawn. way explanation, By we will add judge approv trial that the certificate by way ing statement contained bill qualification: certify following to the does not “The court foregoing exception: language bill of in the record,' argument outside ‘“Such inflammatory prejudicial highly rights to the and should not have permitted.’ opinion that such “The Court argument and deduction inference in this case.” evidence from the impression, Upon we concluded first Cooke, Worth, Clay appellant. of Fort judge had the effect of that statement ground eliminating Parker, Worth, appellees. bill that of ob- Fort R. V. jection; but we are now convinced that meaning DUNKLIN, than that other J. *10 argument not outside
concluded Exchange National Radio instituted record, but- was inference justice Cal- suit in the T. G. ' the evidence. deduction possession to recover a cer- houn title argument However, panatrope we believe that “Brunswicke radio combina- tain decisions notes L. R. A. See