Miller v. Fenner, Beane & Ungerleider

FUNDERBURK, Justice. This is an action primarily seeking the recovery of damages for false imprisonment. J. P. Miller brought the suit against the members composing the copartnership of Fenner, Beane & Ungerleider, and against Fidelity & Deposit Company of Maryland, and Hartford Accident & Indemnity Company. Plaintiff alleged, in substance, that the defendants entered into a conspiracy to cause his arrest without warrant, in pursuance of which he was arrested without warrant by members of the Dallas police department, in which transaction he was assaulted and re — 508 — strained of his liberty, and by reason whereof he suffered damages, actual and exemplary. The defendants pleaded a general demurrer, general denial, and special pleas deemed unnecessary particularly to notice, The case was submitted to a jury upon special issues, only a few of which were answered. By such partial verdict the jury found that at the time the officer Parker arrested the plaintiff he had been informed by some reputable person, and believed at the time of the arrest that the plaintiff had in his possession securities which had been stolen; that Captain Bunch of the Dallas police had not assaulted plaintiff; that officer Parker had not assaulted plaintiff; that the stock certificates which were in the possession of plaintiff at the time of his arrest had been stolen; that at the time of plaintiff’s arrest he was not in a suspicious place under circumstances which reasonably showed that he had received property which had been acquired by another by theft. Questions submitted to the jury and not answered sought to elicit findings as follows: (1) Whether the defendants directed or requested the arrest of plaintiff. If so (2) which of the defendants directed or requested such arrest. And if the last-named question was answered (3) in what manner, if any, did said defendants, if any, direct or request such arrest. The jury was directed to answer the last question “none,” or by writing upon lines provided (a) the language, if any, used by the defendant; (b) the acts, if any, used by the defendant; and (c) the conduct, if any, used by the defendant in directing or requesting the arrest of plaintiff. (4) In this special issue, the jury was directed that if they had answered No'. 3 by writing the language used, then to answer by giving the date such language was used, place where the same was used, the name of the person or persons using such language, and the person or persons to whom such language was used. They were further directed that if they had answered by writing the conduct used by the defendants in directing or requesting the arrest, then to give the date, place, parties present at the conduct, giving in detail all such conduct. (5) Whether the officer Parker arrested the plaintiff on his own responsibility. (6) What amount of money would compensate the plaintiff for actual damages. (7) What amount of money would compensate the plaintiff for exemplary damages. Upon the discharge of the jury, plaintiff presented a motion to the court to declare a mistrial. The defendants presented a motion for judgment upon the answers of the jury to the special issues upon which they had made findings, and also to enter judgment in favor of the defendants and against the plaintiff non obstante veredicto, setting forth as reasons for the latter that the undisputed evidence showed that the officer, Parker, in arresting the plaintiff, acted upon his own responsibility; that the undisputed evidence showed that the defendants, neither singly nor collectively, directed or requested or procured the officer arresting Miller to make such arrest. The trial court overruled the motion of the plaintiff and sustained the motion of the defendants, and entered judgment in all things purporting to be rendered upon the verdict of the jury as found and returned. We think the judgment from which the appeal is prosecuted by plaintiff Miller must properly be regarded as a judgment based upon the verdict of the jury, and not a judgment rendered notwithstanding the verdict. The record shows no notice to the plaintiff of a motion to render a judgment non obstante veredicto, and there is no recitation of plaintiff’s appearance upon the hearing of the motion. The reasons given to support the motion for judgment non obstante veredicto were not such as come within the purview of the statute (Vernon’s Ann.Civ.St. art. 2211) authorizing such judgment, since the issues which it was contended were established by the undisputed evidence were among those not answered. The statute has no application to issues submitted to, but not found by, the jury. Wagstaff v. North British & Mercantile Ins. Co., Ltd. (Tex.Civ.App.) 88 S.W.(2d) 550. Defendants in error by their first counter proposition contend,' among other things, that plaintiff failed to prove any act of the defendants, or any of them, showing that they, or any of them, caused or contributed to cause his arrest and detention, but that, on the contrary, the un-contradicted evidence shows that the arresting officer acted on his own initiative and that alone, by reason whereof it is asserted that plaintiff is not entitled to any recovery from them, or any of them, and the court should have granted their — 509 — motions for an instructed verdict, and if anything complained of by plaintiff was error, it was harmless and immaterial, and the judgment should be affirmed. This counter proposition being one of nineteen under the heading “Counter Propositions or Points upon Which Defendants Rely” presents, preliminarily, an important question of practice. In so- far as the facts which it is contended in said counter proposition were established by the undisputed evidence were embraced in the issues or questions submitted to the jury and constituted material issues made by the pleadings and upon which the jury returned no verdict, we are of the opinion that this court is without lawful authority to consider whether the undisputed evidence established such issues and to affirm the judgment solely upon that basis. In order to present that question it was necessary that defendants in error object to the submission of the issues upon the ground that there was no evidence to authorize their submission, and to present the court’s action to this court for review under cross-assignments of error. Only one of these requisites is reflected by this record. Defendants in error made proper objection, but they filed no cross-assignments of error. Assignments of error are designed to accomplish several distinct and important purposes. One is to point the court to the particular rulings or ground of error on which the party intends to rely for reversing the judgment. Fisk v. Wilson, 15 Tex. 430, 435; Byrnes v. Morris, 53 Tex. 213; Legon v. Withee, 25 Tex. 350; Clements v. Plearne, 45 Tex. 415; Randall v. Carlisle, 59 Tex. 69. It is no less certainly one of the functions of an assignment of error to apprise the adverse party of the rulings, actions, or other parts of the proceedings as to which it is his purpose to contend that there was error. Same authorities. The ultimate purpose to be served by pointing out to the court by means of assignments of error, the particular ruling, action, or part of the proceedings is to conserve the time of the court and enable the court to accomplish in a given time a greater amount of work and thereby better serve the public interest. This idea is particularly stressed in decisions such as Clements v. Hearne, supra; Randall v. Carlisle, supra; Pearson v. Flanagan, 52 Tex. 266; Legon v. Withee, supra. To accomplish such purpose it was necessary to give to assignments of error the effect of waiving all errors except fundamental errors, in any of the rulings, actions, or parts of the proceedings not embraced in the assignments of error. Panhandle & S. F. Ry. Co. v. Burt (Tex.Civ.App.) 71 S.W.(2d) 390, and authorities there cited. Regarding the purpose of the law and the one exception, it is correct to say that the authority of the Courts of Civil Appeals to review the rulings, actions, or other parts of the proceedings in a suit in the trial court is limited to errors particularly pointed out in assignments of errors and to fundamental errors. Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844. See, also, other authorities cited in Panhandle & S. F. Ry. Co. v. Burt, supra. If it becomes necessary for an ap-pellee or a defendant in error to invoke the authority of. the appellate court to determine the existence of error, not fundamental, in any ruling, action or other part of the proceedings of the trial court whether to obtain further relief in a judgment awarding partial relief, or to sustain the judgment in his favor upon some other basis, or for some other reason than that upon which it was predicated by the trial court, then it is necessary to present such matters by cross-assignments of error. Western Union Telegraph Co. v. Cates (Tex.Com.App.) 291 S.W. 193, 194; Garrison v. Dallas Ry. & Terminal Co. (Tex.Civ.App.) 33 S.W. (2d) 295, 296; Galveston, H. & S. A. Ry. Co. v. Reitz, 27 Tex.Civ.App. 411, 65 S.W. 1088; Clay County v. Merchants’ & Planters’ Bank (Tex.Civ.App.) 264 S.W. 163; W. L. Moody Cotton Co. v. Heard (Tex.Civ.App.) 243 S.W. 594; Hill v. Lester (Tex.Civ.App.) 69 S.W. (2d) 474; Garitty v. Halbert (Tex.Civ.App.) 235 S.W. 231; Hardwicke v. Trinity Universal Ins. Co. (Tex.Civ.App.) 89 S.W. (2d) 500; Smith Detective Agency & Night Watch Service v. Town of Highland Park (Tex.Civ.App.) 5 S.W. (2d) 598; Muller v. McLaughlin, 37 Tex.Civ.App. 449, 84 S.W. 687; Norvell-Shapleigh Hardware Co. v. Hall Novelty & Machine Works (Tex.Civ.App.) 91 S.W. 1092; Roemer v. Traylor, 60 Tex.Civ.App. 437, 128 S.W. 685; Woods-Taylor & Co. v. Smith (Tex.Civ.App.) 288 S.W. 1090; Mitchell v. Rushing, 55 Tex.Civ.App. 281, 118 S.W. 582; Watkins Co. v. Gibbs (Tex.Civ.App.) 66 S.W. (2d) 355; Prairie Lea Production Co. v. Lincoln Tank Co. (Tex.Civ.App.) 294 — 510 — S.W. 270; Tripplehorn v. Ladd-Hannon Oil Corporation (Tex.Civ.App.) 8 S.W. (2d) 217; Read v. Gibson & Johnson (Tex.Civ.App.) 12 S.W.(2d) 620; Merchants’ & Planters’ State Bank v. Brewer (Tex.Civ.App.) 286 S.W. 2S3; Stevens v. Wichita Valley Ry. Ox, 45 Tex.Civ.App. 196, 100 S.W. 807; Hume v. Carpenter (Tex.Civ.App.) 188 S.W. 707; Phoenix Ins. Co. v. Ward, 7 Tex.Civ.App. 13, 26 S.W. 763; Gibbs v. Eastham (Tex.Civ.App.) 143 S.W. 323; Tarrant County v. Rogers, 104 Tex. 224, 135 S.W. 110, 136 S.W. 255; Hawkins v. Cook (Tex.Civ.App.) 178 S.W. 624; Burns v. Falls, 23 Tex.Civ.App. 386, 56 S.W. 576; Wilkerson v. Jones. (Tex.Civ.App.) 40 S.W. 1046; Blum v. Moore, 91 Tex. 273, 42 S. W. 856. In Western Union Telegraph Co. v. Cates, supra, it appears that the Court of Civil Appeals (282 S.W. 661) had indicated a doubt whether there was any evidence to sustain a particular finding necessary to support the judgment held to be sustainable on other grounds.- The Commission of Appeals having concluded that the Court of Civil Appeals was in error in affirming the case therefore had for consideration whether it would render judgment based upon such finding, or remand the case to the Court of Civil Appeals for possible disposition regardless of the finding. The court said: “There is no cross-assignment by” appellee “attacking such finding and asking a review of it. In this state of the record the Court of Civil Appeals would not be authorized to set aside the finding, whatever its opinion as to the sufficiency of the evidence.” (Italics ours.) A correct statement and proper application of ’the rule, we think, is to be found in Garrison v. Dallas Ry. & Terminal Co., supra, in which appellee contended that certain misconduct of the jury on account of which the appellant sought reversal was immaterial or harmless because the undisputed evidence showed that the plaintiff was, as a matter of law, guilty of contributory negligence, and the only proper judgment was . for appellee. The court, in disposing of this contention, said: “If it is not a sufficient answer to this contention to say that it does not appear from anything in the record that ap-pellee objected to the submission to the jury of the issues as to contributory negligence on the part of appellant, and therefore is in the attitude of agreeing that the evidence made an issue as to whether appellant was guilty of such negligence or not (Gonzales v. Flores (Tex.Civ.App.) 200 S.W. 851; Hair v. Wichita Valley Ry. Co. (Tex.Civ.App.) 274 S.W. 247; Rosenthal Dry Goods Co. v. Hillebrandt (Tex.Com.App.) 7 S.W. (2d) 521; International & G. N. Ry. Co. v. Vanlandingham, 38 Tex.Civ.App. 206, 85 S.W. 847), it is, we think, a sufficient one to say that appellee is not entitled to have the insistence considered here, because it is not presented by a cross-assignment of error filed in the court below and carried into its brief filed here. Gladney v. Pate (Tex.Civ.App.) 29 S.W. (2d) 794; Yost v. Wilson (Tex.Civ.App.) 27 S.W.(2d) 286; Western Union Tel. Co. v. Cates (Tex.Com.App.) 291 S.W. 193; Merchants’ & Planters’ State Bank v. Brewer (Tex.Civ.App.) 286 S.W. 253; Morrison v. Brooks (Tex.Civ.App.) 189 S.W. 1094; Austin v. Bain (Tex.Civ.App.) 283 S.W. 638; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030.” The court then makes the following important, and, we think, correct deduction from the authorities and the then existing statutes: “As shown by the cases just cited, it has been repeatedly held that matters relied upon to support a judgment, notwithstanding errors which otherwise would require its reversal, must be presented by cross-assignments filed in the trial court.” A subsequent amendment of R.S.1925, art. 1844 (Vernon’s Ann.Civ.St. art. 1844) dispensing with the filing of assignments of error in the trial court, but which, as held in Lamar-Delta County Levee Imp. Dist. v. Dunn (Tex.Com.App.) 61 S.W. (2d) 816, and other cases, leaves in full force the requirement that they be embodied in the briefs is the only modification of the above to make it at this time a correct statement of the law. If, as held in some cases, at least one by this court, [Gillean v. Witherspoon (Tex.Civ.App.) 121 S.W. 909; Smalley v. Paine, 62 Tex.Civ.App1. 52, 130 S.W. 739; Rodgers v. Farmers’ Bank (Tex.Civ.App.) 264 S.W. 491; Standard v. Texas Pacific Coal & Oil Co. (Tex.Civ.App.) 47 S.W. (2d) 443] the appellate court may, without a cross-assignment of error, consider the state of the evidence to determine if an otherwise reversible error is harmless, then some of the most important purposes of assignments of error fail. In this case the statement of facts consists of 957 pages. We are convinced both upon reason and authority that tiihe devoted to public serv — 511 — ice should not be employed to determine whether certain issues were established by the undisputed evidence when no action or ruling involving such question is presented by any of the assignments of error of the plaintiff in error, or cross-assignment of error of defendants in error. In stating the contention of the defendants in error set forth in their first counter proposition, we intentionally omitted the first clause reading as follows: “Because plaintiff failed to prove the alleged conspiracy,” etc. This directs our attention to a situation which involves another question of practice. No issue was submitted to the jury calling for a finding of the existence, or not, of the alleged conspiracy. Plaintiff in error presents no assignment of error complaining of the refusal of any request for the submission of such issue. A careful reading of the plaintiff’s petition convinces us that the .allegations of a conspiracy between the defendants and of which members of the Dallas police department, including the arresting officers, were parties, were essential to the statement of any cause of action. The pleading did not purport to state a cause of action against any of the defendants that did not include the existence of the alleged conspiracy as an essential element thereof. The pleadings referring to the conspiracy in some places as “collusion” and in others as “connivance” contained allegations like these: “That the officers, agents and representatives of each and all of the defendants named herein were in collusion with each other and between themselves and with each other, together with the Dallas police department, and procured the illegal and unlawful arrest of the plaintiff herein, and by their acts, and each of their acts, caused him to be arrested without a warrant and falsely imprisoned as in this petition set forth.” In another place it was alleged of the defendants Fenner, Beane & Ungerleider, that in reference to certain matters they were “at the same time conspiring with the defendant Fidelity and Deposit Company of Maryland and Hartford Accident & Indemnity Company, and with the New York and Dallas police authorities to cause the arrest without warrant of said plaintiff” etc. Other expressions are: “At the instance and malicious connivance;” “as the result of the wrongful malicious acts of each and all of the defendants and by reason of their collusion with and between and among themselves;” “as the result of their collusion and connivance with the Dallas police department and between themselves,” etc.; “that the conspiracy on the part of the defendants, their servants, agents and employees conniving with the police officers hereinabove named was the proximate cause” etc. “Plaintiff would further show to the court that as the result of his unlawful and illegal arrest directly and proximately resulting from the collusion and connivance between the defendants and each of them as in the petition set out,” etc. (Italics ours.) There is wholly absent from the pleadings any allegations designed to show a cause of action against any particular defendant except that such defendant was claimed to be a party to the alleged conspiracy to bring about the arrest of the plaintiff without warrant. It is therefore apparent that an essential issue tendered by the plaintiff’s pleadings was not only not found by the jury, but was not submitted to the jury. Under such circumstances, it is not necessary for us to search the statement of facts to determine the condition of the evidence relating to such an issue. Defendants in error were under no duty to procure the submission of such issue. It should undoubtedly now be regarded as well established that one party to a suit is under no duty to procure the submission of any issue as to which the bttrden is upon his adversary to establish. Citizens’ Nat. Bank of Brownwood v. Texas Compress Co. (Tex.Civ.App.) 294 S.W. 331 (the holding upon this point was quoted with approval in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084) ; Texas City Transp Co. v. Winters (Tex.Com.App.) 222 S.W. S41; Galveston, H. & S. A. Ry. Co. v. Price (Tex.Com.App.) 240 S.W. 524; Turner v. Missouri, K. & T. Ry. Co. (Tex.Civ.App.) 177 S.W. 204; Christian v. Dunavent (Tex.Civ.App.) 232 S.W. 875; Alexander v. Good Marble & Tile Go. (Tex.Civ.App.) 4 S. W.(2d) 636; Brown v. Weir (Tex.Civ.App.) 293 S.W. 916; Panhandle & S. F. Ry. Co. v. Burt (Tex.Civ.App.) 71 S.W. (2d) 390, 391; Continental Oil Co v. Berry (Tex.Civ.App.) 52 S.W. (2d) 953; Walling v. Rose (Tex.Civ.App.) 2 S.W.(2d) 352; Tripplehorn v. Ladd-Hannon Oil Corporation (Tex.Civ.App.) 8 S.W.(2d) 217. The result is that plaintiff has waived the issue of conspiracy and is entitled to no judgment, unless upon a cause of action as to which conspiracy is no element thereof. As said above, we think the only prop — 512 — er construction of the plaintiff's pleadings is that no such cause of action was’attempted to be stated. In the absence of a determination of the issue of conspiracy favorably to the plaintiff, the only judgment the court could render which would, as required, be supported by the pleadings, was a judgment for the defendants in error. Had all the unanswered questions submitted to the jury been answered in favor of the plaintiff, for the reason just stated, the only judgment supported by the, pleadings would be a judgment for the defendants in error. All this appears from the face of the record. No cross-assignment of error is necessary. The effect of such a showing by the record is to render the issues submitted to and not found by the jury immaterial. It is not necessary that they be immaterial under all circumstances. It is sufficient that it appear that under the facts disclosed by the record they cannot be material in this case. Immaterial issues may be disregarded, not only by this court, but by the trial court. Magnolia Pet. Co. v. Connellee (Tex.Com.App.) 11 S.W. (2d) 158, and authorities there cited. We are therefore of the opinion that unless some of the assignments of error of the plaintiff in error present errors which were prejudicial independently of the conclusions above stated they must all be regarded as harmless. Considering the last-named question, it is to be observed that many of plaintiff in error’s assignments complain of the admission of evidence. In every such case we think the evidence was admissible upon the issue of conspiracy, but whether with reference to the admission of evidence of other things at any rate, the errors assigned, if errors, cannot be said to have remotely influenced the lack of a finding upon the essential issue of conspiracy. We therefore conclude that the record discloses that the only judgment which could properly Have been rendered was the judgment which the court did render, and that it should therefore in all things be affirmed, which is accordingly so ordered.