
    TAYLOR BROS. et al. v. HEARN et ux.
    (Court of Civil Appeals of Texas.
    Dec. 14, 1910.)
    1. False Imprisonment (§ 3) — Actions — Allegations op Petition.
    The petition alleged that one of plaintiffs owed for jewelry purchased from defendant, and that plaintiffs thereafter moved to another city, and, as they left the train at their destination, they were arrested pursuant to a telegram of the chief ,of police of the city whence they came, stating that he held a warrant for them for theft; that defendant procured the telegram to be sent maliciously and without probable cause or justification; that plaintiff’s arrest was widely published, and her imprisonment in the presence of her children caused her mental anguish, etc., and injured her in public opinion ; and that by defendant’s act in procuring plaintiffs’ unlawful arrest they were unlawfully deprived of their liberty and held out as thieves, and thus humiliated, etc. There was no allegation of any proceedings against plaintiffs except by inference from the records and telegram, or that any proceedings against them terminated favorably to them. Held, that the petition did not allege an action for malicious prosecution, but alleged one for false imprisonment.
    [Ed. Note. — Por other cases, see False Imprisonment, Cent. Dig. § 2; Dec. Dig. § 3.]
    2. Damages (§ 221) — Actions — Verdict — Construction.
    A verdict under instructions to find any damages for malicious prosecution separately, finding “for the plaintiffs actual damages $100, false imprisonment $2,500, and exemplary damages $2,900,” did not find any damages for malicious prosecution.
    [Ed. Note. — For other cases, see Damages, Dec. Dig. § 221.]
    3. Appeal and Error (§ 1033) — Harmless Error — Findings Favorable to Complaining Party.
    In an action submitted as one for malicious prosecution and false imprisonment, a verdict finding no damages for malicious prosecution was favorable to defendants, so that they cannot complain thereof on that ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4059; Dec. Dig. § 1033.]
    4. False Imprisonment (§ 7) — Right op Action.
    Defendants procured a police officer to sign and send a telegram to the chief of police of another town stating that the sender held a warrant for plaintiffs for felony theft, and directing the sendee to “hold all diamonds.” Plaintiffs were arrested by the receiving officer and detained to be searched until discharged the next day on habeas corpus. The purpose of the telegram was to. cause plaintiffs’ arrest. Held, in an action for false imprisonment that a peremptory instruction for plaintiffs was properly given.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-61; Dec. Dig. § 7.]
    5. False Imprisonment (§ 40*) — Actions— Instructions.
    Where the petition in an action for false imprisonment by a husband and wife alleged that damages were claimed only for the wife’s imprisonment, and one instruction limited the damages to those sustained by her, but the instruction on exemplary damages authorized the award of such damages to “plaintiffs,” a requested instruction by defendant that the jury should not consider the arrest of the husband or the damages sustained by him in connection therewith, or any question as to his guilt of the charges for which his wife was arrested, should have been given.
    [Ed. Note. — For other cases, see False Imprisonment, Dec. Dig. § 40.]
    6. False Imprisonment (§ 27*) — Actions— Admission op Evidence.
    Where defendant prepared and procured a telegram, directing plaintiffs’ arrest, to be sent by a chief of police, a telegram directed to the chief of police by a police officer of another city, to whom the original telegram was sent: “Ans. by saying that” plaintiffs “arrested. Say diamonds are in iron safe, * * * send officer at once. Claim diamonds was bought on installment” — was admissible in evidence; being in effect to defendant.
    [Ed. Note. — For other cases, see False Imprisonment, Dee. Dig. § 27.]
    7. Appeal and Error (§ 1051) — Harmless-Error — Admission op Evidence.
    Error could not be predicated on the admission in evidence of a telegram where everything contained therein was shown by other undisputed evidence.
    [Ed. Note. — For other cases, see Appeal and; Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    8. Witnesses (§ 248) — Examination — Answer.
    A question to plaintiff in an action for false imprisonment, based on her arrest for theft of jewelry which she claimed she had purchased from defendant, whether when she left town she was in debt to others than defendant was in effect answered by her testimony that she had never beaten any one out of anything she owed and tried to pay the best she could.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.]
    9. False Imprisonment (§§ 24, 30) — Actions —Admission op Evidence — Mitigation op Damages.
    In an action for false imprisonment based on plaintiff’s arrest for theft, pursuant to a telegram procured to be sent by defendant, the fact that defendant sent the telegram upon the advice of counsel, if shown, would be admissible on the issue of malice, and in mitigation of exemplary damages.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 101, 106, 107; Dec. Dig- §§ 24, 30.]
    Appeal from District Court, Harris County; W. P. Hamblen, Judge.
    Action by D. S. Hearn and wife against Taylor Bros, and others. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    C. H. C. Amerman, John M. Duncan, and Spotts & Matthews, for appellants. Brock-man, Kahn & Williams, for áppellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   JAMES, C. J.

According to the charge in this ease, it was submitted to the jury as one for malicious prosecution and false imprisonment on behalf of appellees against the members of the firm of Taylor Bros, and Ben F. Harless.

As we understand the amended petition, it does not state a case of malicious prosecution, nor does it declare for damages arising from malicious prosecution. It alleged: That Mrs. Hearn owed appellants for jewelry bought of them in Houston, and that on April 9, 1907, they moved from Houston to Memphis. That as they alighted from the train at Memphis they were taken in custody by officers in pursuance of the following telegram from the chief of police of Houston: “Houston, Apr. 10-07. Geo. T. O’Haver, Chief of Police, Memphis, Tenn.: I hold warrant for B. S. Hearn and Leona Hearn for felony theft. Hearn about five feet ten clean shaved, weight about 137 looks like a Jew. Wife red complexion sunburn hair, weight about 180 lbs., has two children, girl about 10 years old, very fleshy, boy fifteen years old, search, - and hold all diamonds. They left Houston on I. & G. N. train 9th 3.30 p. m. George Ellis, Chief of Police.” That the accusation against them contained in said telegram was maliciously false and untrue, and said telegram was wantonly and maliciously by defendants procured to be sent, and plaintiffs to be so arrested and incarcerated, and all without probable cause or any justification or excuse whatever. That neither of the plaintiffs was in any way guilty of the charge contained in said telegram, and the said arrest of plaintiffs was widely published in the newspapers of both Houston and Galveston, Tex., and wide circulation given to the fact that plaintiffs had been arrested in Memphis on a charge of felony theft which allegations defendants knew, to be false and unfounded and to be without probable cause, and the incarceration of plaintiff Leona M. Hearn in the presence of her two young children, and the necessity of the children remaining with her in the jail at Memphis,' caused plaintiff the greatest physical suffering, mental anguish, mortification of spirit, shame, and humiliation, and was calculated to and did injure plaintiff in the eyes of the public, etc. That by reason of said acts of the defendants in so procuring the unlawful and unwarrantable arrest of plaintiffs, they were unlawfully and maliciously deprived of their liberty, and held out as common felons and thieves, and were compelled to endure the humiliation, shame, and mortification of being looked upon in said city of strangers as thieves and felons, and to endure the humiliation, mortification, and disgrace of said incarceration, and the physical discomforts entailed thereby; all of which was the proximate result of the malicious, willful, and wrongful acts of the defendants in making said false accusation, and in procuring the said telegram to be sent, and, in procuring the arrest of plaintiffs, she has been actually damaged in the sum of $25,000. That by reason of the malice and willfulness of defendants toward plaintiff Leona M. Hearn and in the charging of said plaintiff with the crime of felony theft, and by reason of her arrest and incarceration, etc., having been the direct and proximate result of the malice and willfulness of defendants toward plaintiff, and by reason of her being held out to the contumely and reproach of the public, and by reason of her being branded and published to the world as a felon and thief, ‘all of which was done and procured through the malice of defendants towards said plaintiff, she has been damaged in the sum of $50,000, as exemplary damages. That by reason of the illegal arrest, detention, and incarceration of the plaintiffs they were compelled to employ attorneys to bring a habeas corpus proceeding for their release, and had to expend in that behalf the sum of $100. Wherefore they prayed for the actual and exemplary damages to plaintiff Leona M. Hearn.

It will be seen from the above that plaintiffs do not allege the warrant held by the Houston chief of police, nor any affidavit, or proceeding, from which any such warrant issued, nor, except by inference from the telegram, is any proceeding made known. Nor is there any allegation that the proceeding, if any, has ever terminated favorably to plaintiffs, or otherwise. The cause of action is based upon the telegram, which it is alleged was sent at the instigation and by the procurement of defendants, charging that the chief of police of Houston held a warrant against them for felony theft, which led to the arrest and imprisonment of plaintiff, and to the consequences alleged. In our opinion the petition does not state a case for damages for malicious prosecution, but for false imprisonment. This being so we need not consider nor discuss the assignments of error which deal alone with the law relating to malicious prosecution.

The court submitted to the jury for their findings a case of malicious prosecution and a case of false imprisonment separately, instructing them peremptorily to find for plaintiffs on the issue of false imprisonment, and they were told that in reference to actual damages to include any amount they found plaintiff had to pay out as attorney’s fees. They were instructed to find the damages for malicious prosecution and for false imprisonment separately. The verdict returned was as follows: “We, the jury, find for the plaintiffs actual damages $100, false imprisonment $2,500, and exemplary damages $2,900.” It is manifest that the finding for $100 actual damages was for attorney’s fees. It being conceded that the statement of facts shows ho testimony supporting this finding, that part of the judgment might be corrected by striking it out, as plaintiff consents to do. It is equally manifest that the jury found no damages for malicious prosecution. This, under the pleading, was correct; besides being in favor of appellants, it is not subject to complaint from them. It was practically a finding for appellants on that issue. The assignments of error which deal with the false imprisonment feature of the case will now be considered.

The twenty-sixth assignment is that the court erred in this instruction: “As to the issue of false imprisonment, you are instructed as a matter of law that the arrest of the plaintiff Leona M. Hearn, under the circumstances shown in proof in this case, was illegal, and therefore you will find for plaintiffs upon that issue, and assess their damages as hereinafter instructed.” There can be no serious question that the taking of Mrs. Hearn in custody by virtue of the telegram was illegal. It was not a lawful warrant for the arrest It was admittedly prepared and caused to be signed by the chief of police of Houston and sent by the defendants. It was their telegram. It is true that it did not in terms say “arrest” the parties. But plaintiffs and their belongings could not be held and searched without their being detained, and any detention constituted imprisonment. Besides, it appears from all the testimony adduced on the subject tha| the detention for the purposes of search continued and was not completed until they were discharged the next day on habeas corpus. Besides this, defendants’ testimony showed that the object of the telegram was to cause their arrest. There was no error in giving peremptory instruction.

In the same connection appellants complain that the use of the words “as hereinafter instructed” was erroneous, in this: that in the subsequent paragraph 6 the jury were instructed to find on this issue all damages which Mrs. Hearn may have suffered both by false imprisonment and malicious prosecution. Paragraph 6 refers to the two issues separately, and we think that, in view of the whole charge, the jury could not have been misled into any such understanding.

The forty-fourth assignment of error is as follows: “The court refused to give this requested instruction: ‘You are further charged, as ■ a part of the law of this case, that you will not consider any affidavit made by the defendant against plaintiff D. S. Hearn, nor his arrest, if any, nor any damage, if any, suffered by him in connection with such arrest or imprisonment, nor any question as to the guilt or innocence of the said D. S. Hearn, of the charge or charges made in the affidavits in evidence in this suit.’ ” We think defendants were entitled to this charge. The petition expressly declared that damages were claimed only in respect to Mrs. Hearn. In paragraph 6, which relates to actual damages, the court expressly limited the finding to damages sustained by her. But paragraph No. 7, relating to exemplary damages, does not do so, but authorizes such damages in favor of plaintiffs. Under these circumstances the charge ought to have been given.

Under the first assignment appellants claim that it was error to admit in evidence the telegraphic reply of O’Haver directed to Ellis, the chief of police at Houston, which was: “Ans. by saying that B. S. Hearn and Leona Hearn arrested. Say diamonds are in iron safe shipped with II. H. goods, send officer at once. Claims diamonds was bought on installment.” Inasmuch as the evidence clearly shows that the original telegram was prepared and procured by defendants to be sent by Ellis, the reply was really to them and was admissible. However, no error could be predicated on this, for the reason that everything the reply evidences was otherwise shown by undisputed testimony.

The fourth and fifth assignments complain of defendants not being allowed to show by plaintiff Mrs. Hearn that when she left Houston she was in debt to other persons than these defendants, appellants basing their claim to the admissibility of such testimony upon the fact that the petition alleged evidently by way of aggravation of her damages “that she had never beaten anybody out of anything that she had ever owed.” It appears, from what she testified to, that she did not deny owing others. She testified, on cross-examination: “I have never beaten anybody out of anything that I owed. I never beat anybody that I didn’t pay; I tried to pay the best I could.” The question, we find, was, in effect, answered.

The question of advice of counsel, so far as it is involved in this record, has reference solely to the supposed issue of malicious prosecution. It was not claimed that there was any advice of counsel taken in the matter of the sending of the telegram. If such had been the case it would have been proper for the jury to consider it on the question of malice in connection with and mitigation of exemplary damages. The charge on advice of counsel which the court gave is in accord with the decisions on that subject.

In view of a reversal, it is not necessary for us to discuss the assignments which refer to alleged errors in the manner in which the verdict was arrived at and returned.

Reversed and remanded.  