McDonald v. Henderson , 250 S.W. 463 ( 1923 )

  • We have carefully considered the various propositions presented by appellant, and, having reached the conclusion that no grounds for reversal are shown, dispose of these propositions by a general statement of our conclusions.

    The petition, in our opinion, presented a good cause of action for aggravated assault (articles 1008 and 1022, Penal Code) and false imprisonment (Penal Code, art. 1039; 11 R.C.L. p. 793, § 5; 25 C.J. pp. 452-455). The allegations of detention of the plaintiff, at the point of a gun, until the arrival of officers, for whom defendant sent, certainly made a case of false imprisonment. The officers, in taking the plaintiff to Memphis, without warrant of arrest and no excuse for arrest without warrant, continued the false imprisonment, and as this action was at defendant's instance he was also responsible therefor. Taylor v. Hearn,63 Tex. Civ. App. 333, 133 S.W. 301; 25 C.J. 469.

    The fact that no physical hurt was inflicted on the plaintiff is no reason for denying recovery of reasonable compensation for mental suffering, of which humiliation, shame, fright, etc., are elements to be considered. 25 C.J. pp. 559, 560; Gold v. Campbell, 54 Tex. Civ. App. 269,117 S.W. 468; Hays v. Creary, 60 Tex. 445; 11 R.C.L. p. 819, § 34.

    The plaintiff, as another element of damage, was entitled to recover the reasonable expenses incurred in freeing himself from the false imprisonment. Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S.W. 468; 25 C.J. 558, § 173.

    We think the petition sufficient in the allegation of $2.50 automobile expense in going to and returning from Memphis, but *Page 464 doubt the sufficiency of the allegation as to the $25 attorney fees. However the exceptions urged were to both of these items and the allegations being sufficient as to one there was no error in overruling them. Weatherford Railway Co. v. Granger, 85 Tex. 574, 22 S.W. 959; Zeiger v. Woodson (Tex. Civ. App.) 202 S.W. 166, 168, 169. The allegations and proof are also sufficient to warrant recovery of exemplary damages. Gold v. Campbell, supra; 25 C.J. p. 563.

    The evidence, in our opinion, would have justified a peremptory instruction for the plaintiff on the issue of liability, leaving the jury only to determine the amount of the damage. For this reason any error in the refusal of defendant's requested charges on the issue of liability was harmless. While the two issues of damage might have well been combined and submitted as one issue under proper instructions, we think it apparent that different elements of damage were submitted and found by the jury, and that there was no double recovery. The facts would have warranted the assessment of plaintiff's damages at a much larger amount than he recovered on verdict of the jury.