Hicks v. Matthews

On Motion for Rehearing

Pending disposition of his motion for re-, hearing, appellant has been granted leave to amend the record and supplement the transcript so as to bring before this court the written objections which he made to the ■original draft of the trial court’s charge to the jury. The motion having been accompanied by a certified copy of the objections, showing them to have been presented to and acted upon by the trial judge and duly .filed, the certified copy was ordered filed, in lieu ■of ordering up a supplemental transcript. Rule 428, T.R.C.P.; Alexander v. Full-wood, Tex.Civ.App., 143 S.W.2d 646. The record as amended reflects that appellant made the following objections to the original draft of the issue submitting the question of damages, which issue was apparently special issue No. 1: “Defendant objects to Special Issue No. 1 because the court inquires therein of the amount of damages which the plaintiff has sustained as a direct result of the ‘arrest’ and detention of the plaintiff without first having been carried before a magistrate, in "that such inquiry permits the jury to assess damages in favor of* the plaintiff for the arrest, itself, which, under the undisputed evidence in this case, was lawful though the arrest was made without authority of a warrant. The only actual damages which the plaintiff could possibly have suffered, if any, was damages which resulted from the failure of the defendant to present the plaintiff before a magistrate before the plaintiff was placed in jail. Consequently, in order to properly submit the issues involved,' the court should delete from such issue the question of such damages as plaintiff may have suffered as a result of the arrest, but should confine the inquiry ■ alone to the amount of damages which the plaintiff has sustained and will sustain as a result of the failure of the defendant to present the plaintiff before a magistrate after the arrest but before the plaintiff was incarcerated.” The objections bear the certificate of the. .trial judge, showing them to have been timely presented, and to have been overruled and refused, “except insofar ■ as it may appear that the charge has been modified in conformity therewith.” The, damage. issue, as finally submitted, did not use the word “arrest”, but only inquired as to the damages sustained by the plaintiff “as a direct result of the detention and incarceration * * * without -having been carried immediately before a magistrate having jurisdiction of either of the offenses with which he is charged.” This issue, special issue No. 3, is' set out in full in our, original opinion. '

In his motion for rehearing, appellant has assigned error to the holding in our original *214opinion that special issue No. 3 did not undertake to restrict the damages to those sustained by appellee after he should have been taken before a magistrate, but was broad enough to embrace all stages of his arrest and detention. He has also assigned error to our holding that in answering special issue No. 3 the jury was authorized to consider the damages sustained by the ap-pellee as a result qf his initial detention without a warrant of arrest. It was in connection with these assignments that the objections to .the original draft of the court’s, charge were brought forward. .. .

■ The original draft of the court’s charge is not before us, but for the purposes of this discussion we shall infer from the objections above set out that the word “arrest” was used in the original draft, and, in deference to the objections, was omitted from the final draft of the issue by which the question of actual damages was submitted to the jury.

We adhere to the views expressed in our original opinion that under the facts as proved the arrest without warrant was illegal and constituted false imprisonment. We also adhere to our holding that appellant was 'guilty of a trespass ab initio and was therefore legally liable for all of its conseqences. The subsequent detention and incarceration of appellee were a continuation of the initial trespass and were consequences of it for which appellant was liable without regard to his failure to take appellee before a magistrate immediately. The restraint and incarceration were illegal and wrongful from their inception and throughout their continuation, and they would not be rendered any the less so by appellee’s failure to insist on his right to recover damages for the initial arrest, nor by the court’s action in improperly restricting the jury to a consideration of only a part of the wrongful detention when assessing the damages.

Therefore, if we were in error in holding that special issue No. 3, as submitted, did not exclude the initial arrest from the jury’s consideration, and if in fact the issue did exclude it, and,the jury so construed the issue, no different disposition of the appeal is required. Under such circumstances the issue was more favorable to appellant than the law and facts warranted. The exclusion was to appellant’s benefit rather than, to his detriment.

In addition to the assignments already discussed, appellant assigns error to our holding that appellee was under no duty to. file an accident report. He avers that at the time of the accident, the driver of ap-pellee’s automobile was acting as appellee’s agent, and that therefore Section 145 of Art. 6701d, Rev.Civ.Stat, required appellee to file a report.

■ Section 145 reads as follows: “Every person who commits, attempts to commit., conspires to commit, or aids or abets in the commission of, any act declared herein to be-a crime, whether individually or in connection with one or more other persons or as a principal, agent, or accessory, shall be guilty of such offense, and every person who falsely, fraudulently, forcibly, or wilfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this Act is likewise guilty of such offense.”

The offense or offenses which ap-pellee was supposed to have committed were not based on the manner in -which his automobile had been driven, nor on the fact that it had been driven into a ditch and wrecked, but upon his failure to forward a report of the accident. As regards his failure in this respect, the evidence wholly fails to show any relationship between appellee and the driver of his automobile, or anything transpiring between them, that would' make the foregoing Section of the Article applicable.

The remaining assignments have been sufficiently disposed of in our original opinion.

Appellant’s motion for rehearing is therefore overruled.