concurring.
I agree with the majority’s holding that a motion for judgment notwithstanding the verdict may not be properly granted upon defects and omissions of pleadings. However, as asserted by defendants as ground for affirmance of the judgment, a jury finding on an issue not pleaded and not tried by consent may be disregarded as immaterial by the court on its own motion. Camco, Incorporated v. Evans, 377 S.W.2d 703, 707 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.), and authorities cited therein; Johnson v. Breckenridge-Stephens Title Co., 257 S.W. 223, 228 (Tex.Com.App. 1924, judgment adopted). If any finding essential to plaintiff’s cause of action was properly disregarded by the trial court under that rule, then it is our duty to affirm the judgment because “an appellate court will sustain the judgment of a trial court if it is correct on any theory of law applicable to the case, and that regardless of whether the trial court gives the correct legal reason for the judgment he enters, or whether he gives any reason at all.” Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73, 84 (1939).
The elements of a suit for malicious prosecution based upon the prosecution of a criminal action against plaintiff by defendant are: (1) the commencement of the criminal prosecution against plaintiff, (2) caused by defendant or through his aid or cooperation, (3) which terminated in plaintiff’s favor; (4) that plaintiff was innocent of the *212charge brought against him; (5) that the criminal charge was filed by defendant without probable cause, and (6) with malice; and (7) that plaintiff was thereby damaged. Flowers v. Central Power & Light Co., 314 S.W.2d 373, (Tex.Civ.App. —Waco 1958, writ ref’d n. r. e.); Williams v. Frank Parra Chevrolet, Inc., 552 S.W.2d 635, 637 (Tex.Civ.App.—Waco 1977, no writ). As shown in the majority opinion, the jury found in plaintiff’s favor on all of those elements.
I shall not detail plaintiff’s pleadings. It is sufficient to say that he expressly alleged every element set forth above except want of probable cause for the filing of the complaint by defendants. However, he did allege that the complaint against him “was dismissed when he hired counsel who demanded a speedy trial.” Defendants filed many exceptions to plaintiff’s pleadings, but they did not except on the ground that plaintiff failed to plead the element of want of probable cause. In the absence of the special exception the petition must be liberally construed in plaintiff’s favor on the question. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 515 (1941). In the light of that rule, I would hold that plaintiff’s allegation that the complaint was dismissed when he employed legal counsel and demanded a speedy trial may be reasonably construed as alleging that there was not probable cause for the filing of the complaint.
Defendants also alleged in their motion for judgment non obstante veredicto that the jury’s answers to special issues one through ten were not supported by any evidence. If that ground is valid, then the motion was properly granted and the judgment must be sustained under the rule in Gulf Land Co. v. Atlantic Refining Co., supra. However, without setting forth the proof, it is my view that there is evidence to support all of those findings. Defendants do not argue otherwise.
Accordingly, I agree with the majority that the judgment must be reversed.
Defendants have a cross point in which they contend that the evidence is factually insufficient to support the jury’s award of $35,000.00 damages to plaintiff. It is my view that under the whole record the cross point presents a valid complaint. I would sustain it and remand the case for retrial upon that basis. Jackson v. Ewton, (Tex.1967) 411 S.W.2d 715, 717.